Jolley v Sutton London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD WOOLF, MR,LORD JUSTICE ROCH,LORD JUSTICE JUDGE |
| Judgment Date | 19 June 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0619-16 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 June 1998 |
| Docket Number | QBENF97/0800/1 |
[1998] EWCA Civ J0619-16
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR RECORDER GEOFFREY BRICE QC sitting as a Deputy High Court Judge)
Royal Courts of Justice
Strand
London WC2
The Master Of The Rolls
(Lord Woolf)
Lord Justice Roch
Lord Justice Judge
QBENF97/0800/1
MR M DE NAVARRO QC and MR H PALMER (Instructed by Messrs Watmores, Chancery House, 53-66 Chancery Lane, London, EC2A 1QU ) appeared on behalf of the Appellant
MR BRIAN LANGSTAFF QC and MR P SPENCER (Instructed by Messrs Rowley Ashworth, 247 The Broadway, Wimbledon, London SW19 1SE) appeared on behalf of the Respondent
This is an appeal from a decision of Mr Recorder Geoffrey Brice QC sitting as a Deputy High Court Judge given on 14 May 1997.
In his careful and detailed judgment the judge awarded the plaintiff £621,710 damages in relation to an accident in which he was involved on 8 April 1990 when he was a schoolboy aged 14. As a result of the accident the plaintiff sustained serious spinal injuries. He is now a paraplegic with major complications and confined to a wheelchair. The judge indicated that his suffering has been immense and not only will his condition not improve but in time it is bound to deteriorate. The damages would have been higher, if they had not been reduced by a finding of 25% contributory negligence.
The defendants, the London Borough of Sutton (the "Council"), do not dispute they were negligent. The principal issue on the appeal is whether the Council should have foreseen the accident which caused the plaintiff's injuries. As the judge pointed out in his judgment there is no real dispute as to the circumstances in which this accident occurred. It is therefore unnecessary to describe the accident in detail.
The Facts
The Council own a block of flats called Hayling Court, North Cheam. Nearby there is "amenity land" which also belongs to the Council. A boat was left lying on this land for at least two years before the accident. The plaintiff lived nearby and in the early summer of 1989 when walking in the vicinity with a friend, Karl, he saw a boat which had been abandoned on the amenity land outside the flats. Both were very interested in boats. It seemed to be in good condition. Some months passed and they saw the boat again in the same position. They spoke to a man, who has never been identified, who told them they could have the boat. They decided to repair the boat and take it to Cornwall so as to sail it but no thought was given by them as to how this would be achieved. The boat had no mast, no sail, and no engine. There was however a trailer lying nearby and apparently they wanted to take the boat to Cornwall because that was where pirates were to be found!
They started to repair the boat in February 1990. For this purpose they tried to use the trailer, but were unsuccessful because of the rotten state of the wooden structure of the boat. A jack was used instead. The jack belonged to the plaintiff's father. By using the car jack and some wood, they were able to raise the front of the boat about two and a half feet. This enabled them to attempt to repair several holes in the hull of the boat.
They continued to work on the boat for a period of about six weeks at weekends and evenings. On 8 April 1990, the day of the accident, they were working under the boat. Karl crawled out from under, but suddenly for reasons which are not clear, the boat started to rock, Karl shouted to the plaintiff to get clear but he was unable to do so before it landed on his back causing his dreadful injuries.
The Judge's Conclusions
During the two years the boat had been on the land belonging to the Council, it had been seen by their employees from time to time and was regarded as something of a eyesore. The Council's employees wished to move the boat off the estate and there was no legal reason why they should not do so but due to a bureaucratic muddle this never happened. In December 1988 the defendants did however attach a sticker to the boat which was in a form used for abandoned cars. It read "DANGER DO NOT TOUCH THIS VEHICLE UNLESS YOU ARE THE OWNER ……".
The Council were not aware that the plaintiff and Karl were working on the boat. It was however plainly abandoned and a caretaker employed by the Council, who was regarded by the judge as a solid and honest witness, was aware prior to the accident that the boat was clearly derelict, that it would attract the attention of children and would be a danger to children if they played on it. The hull of the boat had settled into the ground to some extent but this is not a sufficient reason for rejecting Mr Langstaff's QC submission on behalf of the plaintiff that if any force was applied to the boat it would move or rock. There had been complaints to the Council about the boat. It was thought to be a danger and an eyesore. Although it was not examined closely by the defendant's employees, if it had been, it would have been obvious to them it was in a rotten condition.
Among the judge's conclusions was that the boat was something which could be anticipated would be an attraction to children. That if they played with it, they might suffer some injury, perhaps of a quite minor nature. That it was reasonably foreseeable that children, including those of the age of the plaintiff, would meddle with the boat and be at risk of some physical injury. That the Council ought to have removed and disposed of the boat not merely because the boat was an eyesore but because it was a trap.
It was common ground that the Council owed to the plaintiff, as a visitor, the "common duty of care" as defined in section 2 of the Occupiers Liability Act 1957. That duty is defined in section 2(2) 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 purpose for which he is invited or permitted by the occupier to be there.
Section 2 provides that:
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 a proper case -
(a) an occupier must be prepared for children to be less careful than adults; …"
The judge in coming to his conclusion on the question of the Council's liability made the following points:
"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. …. 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 the strength and ability to raise the boat and prop it up. …
There was no reason in fact or in law preventing the defendants from removing and disposing of the boat well before the accident … As owners and occupiers of Hayling Court estate they were entitled to remove and dispose of abandoned motor cars and an abandoned boat.
I find that the type of accident and injury which occurred in this case was reasonably foreseeable (albeit that it involved significant meddling with a 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."
"I should add that the case focused on the defendants liability as occupiers of the grassed area on which the boat was abandoned. However an alternative ground was based on a case of negligence simpliciter. …. Were it necessary to do so I would have held the defendants liable in negligence in that they exercised in my judgment sufficient control over the abandoned boat for a long period that they owed the plaintiff a duty of care."
The Parties' Contentions
Mr de Navarro QC on behalf of the Council advanced a number of different submissions as to why the appeal should be allowed. His primary submission was that the accident in which the plaintiff sustained his injuries was one which the Council could not reasonably have foreseen. Therefore although they were negligent in not removing the boat prior to the accident the negligence was not causative of the plaintiff's loss.
Another argument that he advanced (which is no more than a different approach to the previous argument) is that the plaintiff's activity of jacking up the boat so that they could work under the boat was a new event (a novus actus) which broke the chain of causation. A further way of approaching this issue is to say, because what happened could not be reasonably foreseen, it was outside the area of the invitation or permission which the Council had given to the plaintiff to be on their land.
Mr de Navarro submitted that this court was required to look again at the issues involved and determine them afresh. He submitted that this was not a case where he was challenging the findings by the judge of primary fact, but the inferences to be drawn...
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