McGeown v Northern Ireland Housing Executive
| Jurisdiction | UK Non-devolved |
| Judge | Lord Keith of Kinkel,Lord Goff of Chieveley,Lord Browne-Wilkinson,Lord Mustill,Lord Lloyd of Berwick |
| Judgment Date | 23 June 1994 |
| Judgment citation (vLex) | [1994] UKHL J0623-2 |
| Date | 23 June 1994 |
| Court | House of Lords |
[1994] UKHL J0623-2
Lord Keith of Kinkel
Lord Goff of Chieveley
Lord Browne-Wilkinson
Lord Mustill
Lord Lloyd
House of Lords
My Lords,
This appeal is concerned with the question whether any duty of care is owed by the owner of the soil over which a public right of way passes towards any of the persons who use that right of way, in connection with the maintenance and repair of it.
The appellant, a lady of advanced years, resided with her husband at 3 Juniper Court in Twinbrook, Belfast, of which her husband was tenant, the landlord being the respondent Housing Executive. 3 Juniper Court formed part of a housing estate laid out by the respondents, being part of a terrace of houses on one side of a cul-de-sac. A large part of the area between that terrace and the one opposite it had been taken over and adopted by the Department of the Environment as highway authority, but there remained another part, entirely surrounded by land so taken over, which was partly flagged and partly grass covered and was in the ownership of the respondents. This was crossed by three footpaths, and it was found by the trial judge, the Rt. Hon. Turlough O'Donnell, that the public had acquired a right of way over these footpaths. On 9 December 1985 the appellant was walking over the central footpath when she tripped in a hole in it and fell, sustaining a broken leg. The hole was there owing to a failure to keep the surface of the pathway in good repair, and it constituted a danger to persons using the pathway.
The appellant brought an action of damages against the respondents in the High Court, but on 25 June 1991 her claim was dismissed by the trial judge, who held that he was bound by the decision of the Court of Appeal in Northern Ireland in Brady v. Northern Ireland Housing Executive [1990] N.I. 200, where the plaintiff had failed on very similar facts. His judgment was affirmed by the Court of Appeal (Hutton L.C.J., Kelly and MacDermott L.JJ.) on 13 May 1993. The appellant now appeals to your Lordships' House.
The appeal raises two principal issues. The first concerns the soundness of what has come to be known as the rule in Gautret v. Egerton (1867) L.R. 2 C.P. 371, to the effect that the owner of land over which a public right of way passes is under no liability for negligent nonfeasance towards members of the public using it. The second issue is whether certain persons using the right of way may in appropriate circumstances fall to be treated not simply as members of the public but as visitors of the landowner so that a duty is owed towards them under section 2 of the Occupiers' Liability Act (Northern Ireland) 1957.
In Gautret v. Egerton it was alleged that the deceased individual whom the plaintiff represented fell from a bridge over a cutting which led to docks and was drowned, the bridge, the cutting and the docks all being in the possession of the defendants. The accident was alleged to be due to the fault of the defendants in failing to maintain the bridge properly, which had caused it to be dangerous. It was held by the Court of Common Pleas that no actionable breach of duty on the part of the defendants had been disclosed. Willes J. said at p. 373 in the course of the argument:
"It may be the duty of the defendants to abstain from doing any act which may be dangerous to persons coming upon the land by their invitation or permission, as in Indermaur v. Dames. So, if I employ one to carry an article which is of a peculiarly dangerous nature, without cautioning him, I may be responsible for any injury he sustains through the absence of such caution. That was the case of Farrant v. Barnes. But, what duty does the law impose upon these defendants to keep their bridges in repair? If I dedicate a way to the public which is full of ruts and holes, the public must take it as it is. If I dig a pit in it, I may be liable for the consequences: but, if I do nothing, I am not."
Later, in the course of his judgment at pp. 374-375, he said:
"If the docks to which the way in question led were public docks, the way would be a public way, and the township or parish would be bound to repair it, and no such liability as this could be cast upon the defendants merely by reason of the soil of the way being theirs. That is so not only in reason but also upon authority. It was so held in Robbins v. Jones, where, a way having been for a number of years dedicated to the public, we held that the owner of the adjoining house was not responsible for death resulting to a person from the giving way of the pavement, partly in consequence of its being overweighted by a number of persons crowding upon it, and partly from its having been weakened by user."
In Greenhalgh v. British Railways Board [1969] 2 Q.B. 286 the plaintiff suffered injury through stepping in a pothole while crossing a bridge over the railway. The bridge had originally been built for accommodation purposes under section 68 of the Railways Clauses Consolidation Act 1845, but in the course of time the general public had acquired a right of way over it. The Court of Appeal held that the plaintiff's claim for damages failed. Although under section 68 of the Act of 1845 the defendants owed to owners and occupiers of lands adjoining the railway a duty to maintain the bridge in proper repair, the plaintiff did not fall into that category and accordingly could not rely on that section. The plaintiff's claim under the Occupiers' Liability Act 1957 was also rejected. Lord Denning M.R. said at pp. 292-293:
"In the second place, it was said that the board owed a duty to Mrs. Greenhalgh under the Occupiers' Liability Act 1957 It was said that she was a 'visitor'. But I do not think she was. Section 1(2) shows that, in order to determine whether a person is a 'visitor,' we must go back to the common law. A person is a 'visitor' if at common law he would be regarded as an invitee or licensee; or be treated as such, as for instance, a person lawfully using premises provided for the use of the public, e.g., a public park, or a person entering by lawful authority, e.g., a policeman with a search warrant. But a 'visitor' does not include a person who crosses land in pursuance of a public or private right of way. Such a person was never regarded as an invitee or licensee, or treated as such. As Willes J. said in Gautret v. Egerton (1867) L.R. 2 C.P. 371, 373:
'But, what duty does the law impose upon these defendants to keep their bridges in repair? If I dedicate a way to the public which is full of ruts and holes, the public must take it as it is.'"
and later:
"Some mention was also made of section 2(6) of the Act of 1957 which says that:
'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.'
The important words to notice are the opening words: 'For the purpose of this section,' i.e., for the purpose of section 2, which defines only the extent of the occupier's duty to acknowledged visitors. It does not expand the range of persons who are to be treated as visitors. Section 2(6) applies, for instance, to persons who enter a public park, or a policeman who enters on a search warrant, for they enter in the exercise of a right conferred by law and are treated as if they were invitees or licensees. They are acknowledged 'visitors.' Section 2(6) shows that the occupier owes to such persons a duty of care when they are using the place for the authorised purpose, but not when they are abusing it. But section 2(6) does not apply to persons crossing land by virtue of a public or private way: because they are never 'visitors' at all. This view is confirmed by all the textbooks, such as Clerk and Lindsell on Torts, 12th ed. (1961), p. 469, para. 846; Salmond on Torts, 14th ed. (1965), p. 399; Winfield on Tort, 8th ed. (1967), p. 279.
Applying these considerations, it is apparent that Mrs, Greenhalgh was not a 'visitor' of the railways board. She was a person who was exercising a public right of way and to her the board owed no duty under the Occupiers' Liability Act."
Davies L.J. agreed and Widgery L.J. said at pp. 294-295:
"I also am in entire agreement but would add a few words on the Occupiers' Liability Act argument, as we are differing from the judge below. Before considering the plaintiff's position under the Occupiers' Liability Act, 1957, it is important to see what her position would have been at common law apart from that Act; and I cannot put the position more clearly than it is put in Salmond on Torts, 14th ed., p. 398, dealing with the responsibility of the owner of the soil towards persons who pass over the land by virtue of a public right of way. The author's words are these:
'It is well established that such an occupier is under no responsibility as such towards users of the highway for its safety and is not liable for dangers thereon whether they exist at the time of dedication or come into existence later.'
That position has prevailed from time immemorial and undoubtedly would provide a complete answer apart from the Act of 1957 to any owner of land who was sued by a passer-by exercising a public right of way over that land.
The question is, has the Act of 1957 made any difference? I am confident that it has not. If one looks at section 1, it is to be observed at once that the rules laid down by the Act are to take the place of the common law rules in respect of the liability of an occupier in certain circumstances. By section 1(2):
'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...
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