NOTES OF CASES
| Date | 01 January 1958 |
| Published date | 01 January 1958 |
| DOI | http://doi.org/10.1111/j.1468-2230.1958.tb00461.x |
NOTES
OF
CASES
DUTIES
OF
NON-OCCUPIERS
OF
LAND
THERE can be few cases which more strikingly illustrate the
difference between the nature of the judicial process in appellate
courts in England and the Continent than the decision
of
the
House of Lords in
A.
C.
Billings
I$-
Sons,
Ltd.
v.
Riden.'
As
a
French case ascends to the Cour de Cassation, the abstraction of
a
legal principle from the peculiarities of the case, which Austin saw
as an
em post jacto
technique for eliciting the
ratio decidendi
of
an
English case,
occurs
in the procedure of argument and judgment:
many a judgment
of
the Cour de Cassation is limited to the specific
enunciation of a general principle of law. But in
Billings
v.
Riden,
the members of the House of Lords entered
on
a careful scrutiny
of the details of the facts, and, indeed, Lord Keith almost dissented
because of a new point of view about the facts. In my note
on
the
case when
it
was before the Court of Appeal
I
was content to
summarise the facts thus
:
"
Contractors were employed to carry
out alterations to the entrance of a house
on
the top floor of which
there was a flat. The alterations took more than one day, and
during the evening of the first the entrance to the house was left
in an unsafe condition. Visitors to the residents in the flat
managed to get in safely during daylight, but on leaving at night
the plaintiff was injured."2 In the House of Lords there was
minutely considered whether the workmen had recommended
a
particular route as a mode
of
ingress and egress, what was the
character of the whether another route via a back door
existed,' and where
on
the route the plaintiff's accident occurred-
on
the particular ground belonging to the house, or
on
adjacent
grounds where the visitor was a trespasser.J Nevertheless, it
is
1
[1067]
3
All
E.R.
1;
nlso
reported nt
[1957]
3
W.L.R.
496.
2
(1967)
20
M.L.R.
!BS.
3
Lord
Keith snid:
"I
should hnve liked
to
know more about the lerrnin
.
.
.
It is quite impossible, in my opinion, to nccept the evidence of the reapondent,
n
womnn seventy-one years
of
age, tbnt she stepped up three feet
to
get on to
the ramp."
(12G)
Why not? How cnn one guess necurntcly the pkysicnl
condition of
an
unseen womnn? It is
trcie thnt the respondent wns eeventy-one yenrs of nge but she seems to have
foiind no grent difficulty in getting
up
n
step from the groiind
to
the top
of the ramp which other witnesses sny wns two or three fect high."
4
Lord Reid:
I'
I
will at this point den1 with two matters which hnve been
rcfcrrcd
to
in nrgument, but which received little attention
nt
the trial."
(8A)
The
first point mss whether the back door exit existed, or whether the door
wns
locked:
the second
wns
whcther the cause
of
the nccident
wns
n
plnnk
lnid on the route by mother visitor.
5
Vnn Mchren, in his exce!lcnt comparison of judicinl process
in
the Unitcd
Stntes. France nnd Germnny, considers thnt
n
"
mechanical
"
nttitudc
(i.c.,
nn undesirable one) is cncournged by isolntion from the facts, and thnt
8
According to
Lord
Reid, moreover,
(OC)
76
JAN.
1958
NOTES
OF
CASES
77
possible to consider the general grounds of the judgments of the
Lords, who unanimously affirmed the decision of the Court
of
Appeal that the contractors had committed a breach of a legal duty
owed to the plaintiff.
(1)
The proposition assumed by Hallett
J.,
viz.,
that since the
plaintiff was a licensee
so
far as the occupiers of the land were
concerned, the contractors owed
no
different duty to her from that
owed by an occupier to
a
licensee in respect of the condition of the
premises, was rejected.e Lord Somervell valuably enunciated the
contradictory general proposition
:
“
a person executing works
on
premises
.
. .
is under
a
general duty to use reasonable care for
the safety of those whom he knows
or
ought reasonably to know
may be affected by
or
lawfully in the vicinity of his work.” This
principle is accepted by all the Lords.s Lord Somervell points out
that a consequence of the principle is that
Malone
v.
Laskey
was
wrongly decided, and also
Bell
v.
L.C.C.
“
insofar as
[it]
was based
on
the decision in
Malone
v.
Laskey.”
Lord Reid says
:
‘‘
Malone’s
case ought to be overruled insofar
as
it
dealt with negligence.”
It
mill be recalled that Denning
L.J.
explicitly pointed out that
this duty owed by those executing work
on
premises applied also
to occupiers of land.
No
speech specifically makes this point
:
their
Lordships adhere closely to the law called for by the facts of
the case. But the absence
of
adverse comment is nevertheless
significant.’
(2)
It
had been contended that the contractors would have dis-
charged their duty by warning of the danger that existed, and that
the plaintiff’s knowledge of the danger obviated the necessity for
warning. This argument originally derived from the erroneous
assumption that the contractors merely owed the same duty as
that of an occupier
to
a
licensee: but
in
the Court of Appeal,
Roxburgh
J.
stnted that
a
warning of danger created by anybody
“
fiinctional
”
attitude
(i.e.,
a
praiseworthy one) ia encouraged by full appre-
ciation of the fncta:
Judicial Process
in
U.S.
and
Germany,
I
Festschrift
fiir
Ernst Rabel, 86;
Judicial Process in
U.S.
and
France,
22 R.J.U. Puerto Rim,
254.
6
Lord Reid charitably found
an
explanation for the assumption of Hallett
J.
in the fact that the occupiers wcre
also
sued.
7
131.
He adds:
”
Some of the phrases in the above statement aro taken from
the judgment of Denning
L.J.
in this case and some from that of Scrutton
L.J.
in
Kimber
v.
Gas
Light
and
Coke
Co.
([1918]
1
K.B. 430 at p. 447).
I
also
agreed with Scrutton
L.J.
that,!his
is
laid down plainly in
Corby
v.
frill
((1858) 4 C.B.(N.S.)
556
at p. 667).
8
Lord
Reid (opinion concurred in by Viscount Simonds) 5C: Lord Cohen (who
also
expressly agreed with
Lord
Reid and Lord Somervell) 10F, qnoting
Denning
L.J.
in tlic Court of Appeal
:
Lord Keith 121.
0
‘fhc existence
of
a
general activity duty on the part of occupiers of land to
licensces
wns
clearly relevant
to
the plaintiff’s claim in the rightly criticiscd
case of
Ashdown
v.
Samuel Williams
d
Sons,
Ltd.
[1957]
1
Q.B. 459; [1957]
1
All
E.R.
35.
It is surprising in view of all the reccnt case law on this
qiicstion that the only authority quoted thcre is Salmond on
Torts
citing
Callaqlrer
v.
Humphrey
(1862) 62
L.T.
at pp. 684,
685
(see
per
Jenkins
L.J.
[l957]
1
,+I1
E.R.
at
p.
42D). It is doubtful to my mind whether
Ashdown’s
case
can stand with
”
Billings
v.
Riden.
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