Holden v White
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMROD,LORD JUSTICE OLIVER,MR JUSTICE WOOD |
| Judgment Date | 17 March 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0317-1 |
| Docket Number | 82/0100 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 March 1982 |
[1982] EWCA Civ J0317-1
Lord Justice Ormrod
Lord Justice Oliver
Mr Justice Wood
82/0100
1978 H. No. 1389
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE
HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
MR J. CHERRY (instructed by W.R. Kirk, Esq.) appeared on behalf of the Appellant.
MR C. NEWMAN (instructed by Derek Holden & Co.) appeared on behalf of the Respondent.
Lord Justice Oliver will deliver the first judgment of the Court.
This is an appeal from an Order of Mr Justice Stocker made on the 16th January 1981 awarding a sum of £2250 agreed damages and costs in respect of personal injuries sustained by the Plaintiff against the first Defendant to. the action, Mrs. Edna White. The appeal is one which raises an interesting and unusual point with regard to liability under the Occupiers Liability Act 1957 and since the point is one which may have repercussions which go much wider than the instant case we thought it right to take time to consider our judgments.
The facts are simple and can be stated quite shortly. At Lion Lane, Haslemere, Surrey there is a row of five terraced houses lying more or less at right angles to the main road. These are numbered 4 to 12 (even numbers) and they are approached by a broad way which narrows to a 3 foot wide footway where it reaches the north-western corner of number 4 and which then runs in an almost easterly direction along the front of numbers 4 6 and 8, terminating at the entrance to no. 10 and providing pedestrian access (and it is the only access) to these four houses. In front of the houses it is concreted and in front of each house there is a manhole or inspection cover giving access to what is no doubt a combined drainage system.
So much for the physical lay-out and I must state a little of the Conveyancing history of numbers 4–10. These properties belonged originally to two ladies the Misses Rogers. On the 15th July 1968 they sold and conveyed numbers 6 and 8 to the first Defendant, William Frederick White, and the Conveyance contained a grant of "a right of way at all times and for all purposes (but on foot only) over and along the pathways shown coloured yellow on the plan" (the yellow land including the path which I have already described). On the 20th July 1968 they sold and conveyed number 10 to a Mr Hooper with a similar grant, and on the 28th August 1968 they sold and conveyed number 4, and all the land coloured yellow in the two prior conveyances, to a Mr Roe, but subject to "right of way at all times and for all purposes (but on foot only) over and along the pathways shown yellow on the said plan for the benefit of numbers 6, 8, 10 and 12 Lion Lane aforesaid".
On the 10th August 1970 Mr Roe died, having by his Will devised number 4 and the yellow land to Mrs White, the first Defendant, and she was registered as proprietor under the Land Registration Acts on the 13th November 1970.
Each conveyance included a right to use the drains watercourses, pipes etc. on the adjoining properties.
As regards the actual occupation of the properties the first Defendant and her husband live in numbers 6 and 8; number 10 and 12 are occupied by another family, and number 4 is occupied by a tenant of Mrs. White.
The Plaintiff in the action was at the material time a servery manager employed by Unigate, but he had from time to time acted as a relief milk roundsman and was so acting at the time of the accident on the 17th April 1975. At about 10 a.m. on that day he was walking along the concrete path in front of numbers 4, 6 and 8 for the purpose of delivering milk to number 10. He trod upon the manhole cover in the pathway in front of number 10 and it disintegrated into four or five pieces so that his leg went through and he suffered the injuries in respect of which the agreed damages were awarded. His evidence was that the cover was made of metal and was cracked across. His opinion was that the crack was probably due to the impact of some heavy object. He had visited the premises on one or two previous occasions, his last previous visit being some two or three weeks before the accident.
There was no evidence before the learned Judge with regard to the function of the manholesnor as to their age or the age of the covers. He inferred, however (as was no doubt the case) that they were for the purpose of giving access to drains or services.
Although the claim was framed as a claim against both Mr. and Mrs White, it was in fact pursued only against the latter, she being the owner of No. 4 and, accordingly, of the soil of the pathway: and the foundation of the claim was the Occupiers Liability Act 1957 although there was an alternative claim for negligence at common law.
Before referring to the Act it is well to remember its purpose which was to eradicate some of the unsatisfactory features of the way in which the common law had developed as regards the liability of occupiers of premises for injuries sustained by third parties lawfully resorting there, the extent of the duty owed varying according to whether the person injured was vis-a-vis the occupier an invitee or a licensee. The Act removed this distinction and substituted a single common duty to all visitors, whether licensees or invitees, but it was not its purpose to enlarge the overall class of persons to whom the duty was owed. Section 1 Subsection (l) provides as follows: "The rules enacted by the two next following sections shall have effect, in place of the rules of the common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them".
Subsection (2) reads: "The rules so enacted shall regulate the nature of the duty imposed by law in consequence of a person's occupation or control of premises and of any invitation or permission he gives (or is to be treated as giving) to another to enter or use the premises, but they shall not alter the rules of the common law as to the persons on whom a duty is so imposed or to whom it is owed; and accordingly for the purpose of the rules so enacted the persons who are to be treated as an occupier and as his visitors are the same (subject to subsection (4) of this section) as the persons who at common law be treated as an occupier and as his invitee or licensees."
Subsection (4). which relates to persons exercising rights under the National Parks and Access to the Countryside Act 1949, does not matter for present purposes.
The duty of care is regulated by section 2 subsection (l) which, so far as material, is in the following terms: "An occupier of premises owes the same duty, the 'common duty of care', to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise. (2) 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."
I ought perhaps to refer to subsection (6) because it is referred to in one of the authorities to which we have been referred: "For the purposes of this section, persons who enter premises for any purpose in the exercise of a right conferred by law are to be treated as permitted by the occupier to be there for that purpose, whether they in fact have his permission or not."
These are the only two sections which are material to the present case. The learned Judge held that Mrs White, as the owner of the pathway in which the manhole cover was situated, owed a common duty of care to the plaintiff who was a lawful visitor upon it. He did so on the basis that she was the owner of the pathway, there being no evidence of any arrangements made between the owners of the various cottages inter se. It seems therefore that the learned Judge was treating ownership as equivalent to occupation. Whether or not that is strictly correct need not be further considered—although it does open up some rather startling possibilities having regard to the not uncommon situation where a non-resident vendor of land for development retains the soil of paths and passageways over which the purchasers enjoy rightsin common—because Mr Cherry has conceded in this Court that Mrs White is the occupier. What he contests is the learned Judge's conclusion that the plaintiff ever was her visitor for it is only in relation to her visitors that the Act imposes any duty upon her.
Having regard to the specific provisions of section 1 (2) the question may be postulated in this way; Prior to the Act was a person making use of a private right of way for the purpose of obtaining access to the dominant tenement either an invitee or a licensee of the occupier of the servient tenement?
Certainly it was...
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