Hawkins v Coulsdon and Purley Urban District Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROMER |
| Judgment Date | 17 December 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J1217-1 |
| Date | 17 December 1953 |
| Court | Court of Appeal |
[1953] EWCA Civ J1217-1
Lord Justice Somervell
Lord Justice Denning and
Lord Justice Romer
In The Supreme Court of Judicature
Court of Appeal
MR M.D. VAN OSS (instructed by Messrs William Harles Crocker) appeared on behalf of the Appellants (Defendants).
MR FRANK WHITWORTH (instructed by Messrs Speechly, Mumford & Craig) appeared on behalf of the Respondent (Plaintiff).
LORD JUSTIOE SOMERVELL: The Plaintiff in these proceedings broke her leg on the 5th October, 1951, when coming down the steps of No. 2, Valley Road, Kenley, on a very dark night. The house was at the time requisitioned by the Defendants for housing purposes, and she had been calling on one of the occupants. The north end of the bottom step had been broken for some time with one fairly large piece loose and cracks on the other part. The fall, as a result of which the leg was broken was caused by the broken step and the Plaintiff, was a licensee of the Defendants, and tosucceed she must establish a breach of the duty owed by a licensor to a licensee. Without begging the question of law which arises, the duty of a licensor is to warn licensees of any unusual or concealed danger of which he knows which would not be obvious to a reasonably careful person. Apart from that the licensee takes the premises as he finds them. There are no doubt cases in which a licensee in the dark will be presumed to be aware of what can be seen by daylight. In other cases, ashore, a licensor must contemplate that those whom he is impliedly licensing, for example, callers on the occupants of No. 2, Valley Road, may come and go in darkness. The lamp in the street opposite the house, which the learned Judge found was alight, was behind a tree and threw little if any illumination on the scene. There was a place for a light inside the door but no bulb was there. If this had been lighted it would have thrown some illumination on the upper steps but I doubt if it would have lit up the break.
The learned Judge found that the defect in the stone was a concealed danger to the Plaintiff and that she was not careless of her own safety. I will set out three of his Findings in the paragraphs (h), (i) and (j) of the Judgment: "(h) the physical facts constituting the danger, namely, the badly broken step and the deficiency of light, were known to the Defendants through their officers concerned with the condition of the requisitioned property. (i) A reasonable man, having the Defendants' knowledge of the physical facts, would have appreciated the risk involved, (j) It was not proved, and I do not consider there are sufficient grounds for inferring, that the Defendants appreciated the risk involved. If they had, they would presumably have incurred the small expense necessary to remove the danger by cementing in the broken pieces". The learned Judge in earlier findings speaks of the concealed danger, but I think inthese passages he is using the word "danger" to express the fact that the defective step caused the accident. It proved to be a danger, but would not be a danger within this branch of the law unless a reasonable man, seeing the physical state of the step, would have appreciated the risk.
It is at this stage of the argument that I have had the greatest difficulty. The Defendants employed a repairing surveyor who had seen the premised and their rent collector called regularly. There is evidence that complaints made by the occupants were attended to, and no complaint had been made of this defective step as dangerous. It would only have cost a small sum to repair. To take words from Lord Macnaghten's speech in ( Cooke v. Midland & Great Western Railway of Ireland 1909 Appeal Oases, 229) does not the learned Judge's finding involve that all these people were without common sense and ordinary Intelligence? In other words, may he not have applied a higher standard than that of the reasonable man in deciding that there was a concealed danger at all? On the other hand, it may be that in the special circumstances affecting this house each side may to some extent have relied on the other. The Defendants, in minor matters of this kind, may have left it to the occupants to complain. The occupants may have felt it was for the local authority to do what was necessary and proper to the premises. A better test perhaps is to consider a host showing off a guest who had arrived as the Plaintiff did at dusk and who was leaving in the dark. Having seen photographs I think that the reasonably careful host would have given a warning that that end of the step was broken, and this may be sufficient to support the finding. I would, however, like to express a warning as to the danger of endowing the reasonably careful man with attributes which properly belong to a person of exceptions perspicuity and foresight.
That being so, the main question of law which wasargued before us arises: Can the Defendants escape liability by not appreciating the risk involved although a reasonable man would have done so? In the ordinary case of concealed dangers or traps the danger is obvious to anyone who knows of the physical conditions — who has seen the trap — and the point cannot arise. There is, however, a borderland in which for one reason or other a defendant may be able to satisfy the do art that his common sense and intelligence quoad this particular matter is below the average. The alternative tests have been described as subjective and objective, and the terminology is convenient. The learned Judge preceded on the basis that Mr Justioe Wiliee in his well known Judgment in ( Gautret v. Egerton 1867, Law Reports, 2 Common Pleas, 371) was saying that the subjective test must in all oases be applied. This was the basis of Mr Van Oss's argument for the Defendants, but I do not accept it. Mr Van Oss rightly a relied on the statement in the Judgment that there must be "something like fraud on the part of the giver". This occurs in that part of the Judgment where the learned Judge is finding an analogy in the law as to gifts. In the same passage he says that the giver must know its — the gift's — "evil character at the time and fail to caution the donee". Later; "Every man is bound not willfully to deceive others or do any act which may place them in danger". In the ordinary case where danger exists there would, of course, have been something like fraud and willful deception. The question is whether in the borderland in which the present argument moves Mr Justioe Willes is intending to lay down the subjective test. I find in the Judgment indications that he had in mind the objective test. This can, I think, be gathered from the words "or do any act which may place them in danger".
That was, I think, the view of those words taken by Sir Balliol Brett, Master of the Rolls, in his well knownJudgment in ( Heaven v. Pender 11. Queen's Bench Division, 503, at page 514). Mr Justice Willes just after the passage I have quoted refers to ( Corby v. Hill 4 Common Bench, New Series, page 556). In that case the Plaintiff was a licensee, The Defendant being not the occupier but there by permission of the occupier. The Defendant had placed materials on the ground which caused the accident. Both Chief Justice Cockburn and Mr Justice Willes himself deal with the matter on the assumption that the obstruction had been placed there by the owner or occupier. Chief Justice Cockburn says that "it was not competent to them to place thereon any obstruction calculated to render the ground unsafe and likely to cause injury". Mr Justice willes In his Judgment clearly applies the objective test as against the Defendant. He states the form of declaration which he would have drawn in which he uses the words "likely to prove dangerous to persons driving along the road" As I read it he would have applied the same teat if the obstruction had been placed there by the owner.
On the assumption that I am wrong in the view I take of Mr Justice willes Judgment, I agree with the learned Judge that the decisions to which he refers in the House of Lords dealing with accidents to children are authorities for applying the objective test in this case. Mr Van Oss sought to distinguish those cases on the ground that they dealt with accidents to young children and had indeed been said to be in a class a part. They are, of course, in one sense in a class apart in that, for example, no adult who chose to play with a turntable. Would be able to recover damages if he injured himself. I agree with what the learned Judge says in the following sentences and do not find it necessary to examine these cases in detail: "It thus appears that in the case of a child licensee the objective test is to be applied in deciding whether the licensor had knowledge ofthe danger. Is there any reason for applying a different test in the case of an adult licensee? There are possible differences between a child licensee and an adult licensee with regard to the inference of leave and license, the existence of a trap and the sufficiency of the warning. But I cannot see any reason why any different test should be applied in deciding whether the licenser had knowledge of the danger. Moreover, there is at least some indication of the objective test applying to the case of an adult licensee in the passage which I have already cited in from Lord Sumner's speech In Mersey Docks and Harbour Board v. Proctor, at page 274, containing the words: 'As usual in cases of duties of care, the reasonable man is the standard on both sides. The licensor must act with reasonable diligence to prevent his premises from misleading or entrapping a licensee, who on his side uses reasonable judgment and conduct under circumstances that can be reasonably foreseen'". As I have already said, in most cases the risk is obvious to anyone, who sees the place and the two tests coincide....
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