Jolley v Sutton London Borough Council
| Jurisdiction | UK Non-devolved |
| Judge | LORD BROWNE-WILKINSON,LORD MACKAY OF CLASHFERN,LORD STEYN,LORD HOFFMANN,LORD HOBHOUSE OF WOODBOROUGH |
| Judgment Date | 18 May 2000 |
| Judgment citation (vLex) | [2000] UKHL J0518-3 |
| Date | 18 May 2000 |
| Court | House of Lords |
[2000] UKHL J0518-3
Lord Browne-Wilkinson
Lord Mackay of Clashfern
Lord Steyn
Lord Hoffmann
Lord Hobhouse of Woodborough
HOUSE OF LORDS
My Lords,
I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Steyn. For the reasons which he gives I would allow this appeal and remit the case to the Court of Appeal to consider any issue relating to the quantum of damages which that court is prepared to entertain.
My Lords,
I have had the advantage of reading in draft the speeches prepared by my noble and learned friends Lord Steyn and Lord Hoffmann. For the reasons which they have given I too would allow the appeal.
My Lords,
On 8 April 1990, in the grounds of a block of council flats owned and occupied by the London Borough of Sutton, Justin Jolley, then a schoolboy aged 14, sustained serious spinal injuries in an accident. It arose when a small abandoned cabin cruiser, which had been left lying in the grounds of the block of flats, fell on Justin as he lay underneath it while attempting to repair and paint it. As a result he is now a paraplegic. He claimed damages in tort from the council. At trial the claim was primarily based on a breach of the Occupiers' Liability Acts 1957 and 1984. After a seven day trial in 1998 Mr. Geoffrey Brice, Q.C., a Deputy High Court Judge, gave judgment for Justin but reduced the damages by 25 per cent. by virtue of a finding of contributory negligence. The judge awarded damages in the sum of £621,710, together with interest: Jolley v. London Borough of Sutton [1998] 1 Lloyd's Rep. 433. The council appealed. The Court of Appeal unanimously reversed the judge's conclusions on the merits and entered judgment for the council: Jolley v. Sutton L.B.C. [1998] 1 W.L.R. 1546.
The uncontroversial background
The uncontroversial background can be taken from the Statement of Facts and Issues. The council own and occupy the common parts of a block of council flats known as Hayling Court at North Cheam in Surrey. In 1987 a boat was brought on a trailer to the grounds of Hayling Court. It was placed on a grassed area where children played. The boat was abandoned. It was exposed to the elements and became derelict and rotten. It was neither covered nor fenced around. The trailer was by the side of the boat. In December 1988 the council placed a sticker on the boat which was in a form used for abandoned cars. It read "Danger do not touch this vehicle unless you are the owner" and stated that it would be removed within seven days unless claimed by its owner. Complaints about the boat were made to the council by residents of the block of flats. In the early Summer of 1989 when he was 13 Justin and a friend, Karl Warnham, saw the boat when they were walking past the flats. In February 1990 the two boys returned to the boat, planning to repair it and take it to Cornwall to sail it. Justin was by then 14 years old. They swivelled the boat round, and lifted the front end of the boat onto the trailer so as to be able to get under the boat to repair the hull. The trailer supports made holes in the wooden structure of the boat. Accordingly, the boys pulled the boat off the trailer. In order to repair the holes in the hull, Justin took a car jack and some wood from his home and the boys jacked the front of the abandoned boat up some 2 ½ feet. In that position the boys painted part of the boat, and attempted to repair holes with wood, nails and glue. On one occasion one of the boys put his foot through the structure. Justin and Karl had worked on the boat on about five occasions over some six weeks from February 1990 until the date of the accident. On 8 April 1990 Justin and Karl were underneath the jacked up boat working on it. After a while Justin noticed that Karl had crawled out from under the boat. Justin remained. The boat seemed to rock above him. He tried to get out from under the boat but before he could do so it came down onto him and caused him to suffer a broken back and consequent paraplegia. The immediate cause of the collapse was that the boat toppled off the jack and other material upon which it was propped. It was not established that the derelict or rotten condition of the boat was causative of the collapse.
The judgment at first instance
In a careful and detailed judgment the judge analysed the evidence and made detailed findings of fact. He then quoted the relevant statutory provisions. Section 2(2) of the Occupiers' Liability Act 1957 defines the "common duty of care" as:
"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".
Sub-section (3) provides:
"The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases -
(a) an occupier must be prepared for children to be less careful than adults …"
The judge observed that it has long been established that children are or may be attracted to meddle with objects on premises or property which constitute a danger when meddled with. He stated in very general terms that the occupier is under a duty to protect a child from danger caused by meddling with such an object by taking reasonable steps in the circumstances including, where appropriate, removing the object altogether so as to avoid the prospect of injury. He cited the well known case of Hughes v. Lord Advocate [1963] A.C. 837, as well as a number of other decisions, illustrative of traps or allurements causing harm to children leading to liability by occupiers.
The judge then recorded his conclusions [1998] 1 Lloyd's Rep. 433, 439-440:
"Did the boat present a trap or allurement to the plaintiff and Karl and one which presented a danger of physical injury to them? If so, was this state of affairs reasonably foreseeable to the defendants such that they ought to have taken measure in good time to protect boys such as the plaintiff from such danger? One must keep well in mind that this case is concerned with boys aged 13 and 14. The boat was on a grassed area outside a block of council flats in an area where there were abandoned cars. I have no doubt that the presence of the boat was something which one ought to anticipate would be an attraction to children of differing ages. Younger children might simply play on it and in its rotting condition might suffer injury, perhaps of a quite minor nature. Mr. Palmer stressed that these two boys were not so much playing with the boat as working on it. I do not believe any such distinction assists the defendants. Play can take the form of mimicking adult behaviour. It was reasonably foreseeable that children including those of the age of the plaintiff would meddle with the boat at risk of some physical injury. So far as this type of accident was concerned, it is really only likely to occur if the child was a young teenage boy with strength and ability to raise the boat and prop it up. Abandoned cars were clearly treated by the defendants as a potential source of danger and this abandoned boat must also have fallen into that category. Although the warning DANGER contained on the stickers is not conclusive as to whether a particular object presented a danger it is at least a pointer in that direction
"There was no reason in fact or in law preventing the defendants from removing and disposing of the boat well before the accident (as actually occurred after it). As owners and occupiers of the Hayling Court estate they were entitled to remove and dispose of abandoned motor cars and an abandoned boat. Further they had statutory powers as a local authority under section 6 of the Refuse Disposal (Amenity) Act 1978 to remove and dispose of this abandoned boat. I find that is what the defendants ought to have done, not merely because the boat was an eyesore but because it was a trap or allurement to children."
The judge summed up his conclusion as follows:
"I find that the type of accident and injury which occurred in this case was reasonably foreseeable (albeit that it involved significant meddling with the boat by two young teenage boys and that the injuries proved to be very severe) and that the actions of the plaintiff and/or Karl did not amount to a novus actus. Accordingly, I find the defendants in breach of their duty to the plaintiff as occupiers and (subject to the point on contributory negligence considered below) liable to the plaintiff for the injury, loss and damage which he has sustained."
I have set out these findings of fact at length because the interpretation of the judge's finding became controversial during the hearing of the appeal in the House.
The judgments of the Court of Appeal
The leading judgment in the Court of Appeal was given by Lord Woolf M.R. He cited extensively from the decision in the Privy Council in Overseas Tank (U.K.) Limited v. Morts Docks and Engineering Company Limited (The Wagon Mound) [1961] A.C. 388 ("The Wagon Mound No. 1") and Hughes v. Lord Advocate [1963] A.C. 837. Lord Woolf M.R. then explained his reasons for disagreeing with the judge, [1998] 1 W.L.R. 1546, 1553H-1554E:
"The judge attached importance to the presence of the boat as being both an allurement and a trap. While this can be of significance in some cases it is only part of the background to this case. There can be no dispute that, if this boat was left in this position, children would be attracted by it and would play with it. This was conceded. It was also a trap in...
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