Penney v Berry
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE PARKER,LORD JUSTICE JENKINS |
| Judgment Date | 18 July 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J0718-1 |
| Court | Court of Appeal |
| Date | 18 July 1955 |
[1955] EWCA Civ J0718-1
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls, (Sir Raymond Evershed)
Lord Justice Jenkins and
Lord Justice Parker
Counsel for the Appellant (Plaintiff): MR H.A.P. FISHER, instructed by Messrs Gregory Rowcliffe & Co., Agents for Messrs Hall & Smith, Bury.
Counsel for the Respondent (Defendant): MR P. CURTIS, instructed by Messrs George Haworth & Chappell.
I will ask Lord Justice Parker to deliver the first Judgment in this case.
This is an Appeal from an Order of His Honour Judge Maddox dismissing a claim for damages for personal injuries brought by the Plaintiff, Mrs Penney, against Mr Berry, who was the owner of premises No.57, Bolton Street, Ramsbottom.
Shortly, what had happened was this: on the 10th January, 1953, the Plaintiff was walking along the street outside the Defendant's house when she tripped on what has been referred to, sometimes as a grating, or a cellar-head, or a coal-hole, Whatever the correct appelation, it is clearly shown in the photographs and it consists of a slab, I think about 1 foot by 1 foot 3 inches, of metal with six holes in it and it is laid in a concrete surround bedded on a ledge or rebate, on the concrete. It is in fact the cover of the opening into Mr Berry's cellar used in connection with his house. The learned County Court Judge found that, although that cover was properly bedded down on its ledge – in other words, that it was not sticking up by reason of some coal dust or dirt – nevertheless part of it, one side of it at any rate, projected about ¾ in. above the pavement and in those circumstances the cover constituted a public nuisance and that Mrs Penney tripped on it.
The facts as found by the learned Judge were these: the Defendant had been the owner of the house for some time. He had, in fact, bought it from his father in 1941, and at that time this cover had been more or less in this position, but set in a large flagstone. About 1950 the Local Authority raised the pavement by something like 6in. to 8 in. and in the course of doing that slightly altered the position of the opening into the cellar and fitted the cover into a concrete surround (which again is indicated in the photographs) so that thecover rested on this ledge or rebate in the concrete. As I understand his findings, he has found that from the moment that was done this cover did not fit right down flush with the pavement but at all times thereafter was, at any rate on one side, some 3/4 in. proud of the pavement.
In those circumstances, the only question for this Court is whether the learned County Court Judge was right in holding (as he did hold) that altnough this was a public nuisance, the Defendant was in no way liable witner for its creation or for its continuation or adoption.
Mr Fisher, appearing for the Appellant, has puthis case in this way. He refers the Court to the well-known case of Sedley Denfield v. O'Callaghan (reported in 1940 Appeal Cases) in which the principle was affirmed whereby a party woo, with full knowledge of the existence of a nuisance, fails...
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Macfarlane v Gwalter
...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......