Macfarlane v Gwalter
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ORMEROD,LORD JUSTICE ROMER |
| Judgment Date | 19 December 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J1219-4 |
| Date | 19 December 1957 |
| Court | Court of Appeal |
[1957] EWCA Civ J1219-4
In The Supreme Court of Judicature
Court of Appeal
the Master of the Rolls (Lord Evershed)
Lord Justice Romer And
Lord Justice Ormerod.
Mr. HUGH GRIFFITHS (instructed by Messrs. Church Bruce & Hawkes, Gravesend, Kent) appeared on behalf of the Appellant (Plaintiff).
Mr. RAYMOND KIDELL (instructed by Messrs. Tolhursts, Gravesend, Kent) appeared on behalf of the Respondent (Defendant).
I will ask Lord Justice Ormerod to deliver the fire's Judgment.
This is an appeal from an Order of His Honor Judge Glazebrook given on the 10th July, 1957, at Gravesend County Court dismissing an action by the Appellant against the Respondent for damages for personal injuries arising from the breach of duty of the Respondent. The Appellant is an infant aged twelve. On the 27th October, 1956, she was walking along the pavement in Clarence Street, Gravesend, when her left leg went through an iron grating which was old and in bad condition. It appeared that one of the bars had broken and fallen into the area below the grating. The learned Judge found that the grating was a dangerous trap to passersby and that the Respondent, who was the owner and occupier of the adjacent building, by his servant Mrs. Jones knew of its condition before the accident and could have taken steps to repair it. The grating was fixed into the pavement and was 2 ft. 6 by 18 inches. It covered a small open area and its purpose was to provide light for the cellar window of the Respondent's premises. There was no conclusive evidence available as to whether the grating was there when the street was dedicated, but the surveyor who was called said that the local authority would not new accept dedication of a street containing such a grating. The Judge said: "It seems clear that if the grid, or same predecessor, was put there by the owner of the adjacent property, it has been done before dedication because there was no person to do it afterwards"; and this appeal has been argued on the basis that the grid was there at the time of dedication. The learned County Court Judge held that the Respondent was under no liability to the Appellant either under the statute or at common law.
The questions for this Court are whether the Respondent was under any duty to repair the grating and if so whether by reason of his failure to perform this duty a nuisance had been created upon the highway causing injury to the Appellant for which the Respondent could be made liable in damages.
Mr. Griffiths, on behalf of the Appellant, argued that the Respondent was under a duty to repair the grating by virtue of section 35 sub-section 1 of the Public Health Acts Amendment Act, 1890. He submitted that the Respondent, in breach of the duty, had allowed the grating to fall into so dangerous a condition as to cause it to become a nuisance upon the highway, and that, the Appellant having suffered injuries by reason of the nuisance, the Respondent was liable to compensate her in damages.
Section 35 sub-section 1 reads as follows: "All vaults, arches, and cellars under any street, and all openings into such vaults, arches, or cellars in the surface of any street, and all cellar-heads, gratings, lights, and coal holes in the surface of any street, and all landings, flags, or stones of the path or street supporting the same respectively, shall be kept in good condition and repair by the owners or occupiers of the same, or of the houses or buildings to which the same respectively belong".It should be noted that section 35 sub-sections 2 provides that where default is made in complying with the provisions of the section, the urban authority may, after notice, do the necessary work and recover the cost from the owner or occupier.
It was argued that the grating in question came within the meaning of sub-section 1 and that the Respondent was the occupier of the house or building to which the grating belonged, there being no reason for the existence of the grating other than to cover the small area which admitted that to the cellar of the Respondent's premises. We were referred to a number of authorities in support of this submission. I propose to mention three of them. ( Penny v. Berry 1955 3 All England Reports, page 182) was a case -where the defendant was the owner of premises adjoining the highway and in the surface of the payment was an opening into his cellar covered by a metal slab set in a large flagstone. In about 1950 the local authority raised the level of the pavement and so reconstructed it that the metal cover had a concrete surround and rested in a rebate in the concrete. Unfortunately, it was so constructed that one side of the cover was three-quarters of an inch higher than the pavement, with the resultant in January, 1953, the plaintiff tripped on the cover and was injured. It was held that she was not entitled to recover from the defendant. Lord Justice Parker, on page 183, said: "The general principle, as I understand it, is that there can be no duty on the owner of land adjoining the highway where the nuisance is to abate the nuisance, because the liability Is, primarily at any rate, on the local authority, and, unless...
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Scott v Green & Sons (A Firm)
...is safe; and if he fails in his duty, he isliable In nuisance or negligence as the case may be. That is shown by ( MacFarlane v. Gwalter 1959 2 Q.B. 332), where an occupier knew a grating was defective, and failed for a long time to repair it. He was held liable for nuisance. Also by a case......
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Dutton v Bognor Regis Urban District Council
...1 K. B.517: Green v. Chelsea Borough Council (1954) 2 Q. B.612: Brew v. Suar (1970) 1 Q. B. 612: or over a grating in a highway Macfarlane v. Gwalter (1959) 2 Q. B. 332: Scott v. Green (1969) 1 W. L. R. 501. So here, I think, the local authority, having a right of control over the building ......