Sayers v Harlow U. D. C
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 07 May 1958 |
| Judgment citation (vLex) | [1958] EWCA Civ J0507-3 |
| Court | Court of Appeal |
| Date | 07 May 1958 |
[1958] EWCA Civ J0507-3
The Master of the Rolls (Lord Evershsd)
Lord Justice Morris and
Lord Justice Ormerod
In The Supreme Court of Judicature
Court of Appeal
Mr JAMES J. DAVIS (instructed by Messrs Bailey, Breeze & Wyles) appeared on behalf of the Appellant (Plaintiff).
Mr JOHN B. ELTON (instructed by Messrs Van Sommer, Chillcott, Kitcat & Clark, Agents for Messrs Trotter, Chapman & Whisker, Epping) appeared on behalf of the Respondents (Defendants).
In this appeal a difficult question has arisen as to the liability, in circumstances which I shall relate, of the defendants (respondents) to the plaintiff (appellant); and we are much indebted for the assistance we have receivedfrom Mr Elton and Mr Davis.
The facts I will state briefly, but I shall have to return to one aspect of them hereafter to look more precisely at the evidence and the conclusions of the learned county court Judge. On the morning of the 14th January 1956 the plaintiff, with her husband, left home with a view to going to Olympia in London. They intended to travel to London on an omnibus, and they were on their way to the bus stop. The plaintiff then was minded to visit the public lavatory owned and operated by the defendants. She went to the lavatory, her husband going on to the bus stop. She went to the furthest cubicle, and on entering the lavatory put a penny In the slot provided for the purpose, opened the door, went in, and found that the door had shut and loft her with no means from the inside of re-opening it. It than appears that she spent some time in trying to attract attention orally and A visually from the window in the lavatory; and, that having failed, proceeded to try to sec if she could escape via the door, or make her presence known from or over the door. She stood with her left foot on the seat of the lavatory. With her left hand she seixed the pipe from the lavatory cistern. Her right hand she put on topof the door, and her right foot rested upon the toilet rool and the small fixture in which it was inserted. As will appear when I return to her evidence, she had got so far in the belief that the would be able by a feat not too acrobatic to get out over the door, which in fact was 7 ft. high, but left a space of about 2 ft. 4 insbetween the top of the door and the ceiling.
Having arrived in the posture which I have stated, she concluded, quite rightly, that the feat which she had envisaged, was not within the bounds of her performance, and she then proceeded to start to regain the ground. It was at that stage, or veryshortly afterwards, that the misfortune occurred; for she allowed some degree of her weight to be upon the toilet rool, and her balance to depend upon it. The toilet roll, true to its mechanical requirement, rotated, and that unfortunately disturbed her equilibrium. She fell and sustained injury. The injury was nottrivial, though I understand that it was not serious. We have not in fact gone at all into the quantum of damage.
In those circumstances, the plaintiff claimed that the damage which she had suffered was due to the fault of the defendants, that fault being in the form of breach of the duty of care owed to her, whether or not arising under the implied contract when she made use of the lavatory. Nothing turns upon the foundation of liability, nor indeed upon the finding of the learned Judge that the defendants were negligent; for there has been no appeal on the part of the defendants from that finding. The issue before us has been confined to the second part of the Judge's conclusion, namely, that the damage suffered was in the circumstances too remote from the negligent act or omission of the defendants so as not to fall within the famous formula of being the natural and probable consequence of the wrongful act. In those circumstances, he dismissed the plaintiff's claim.
The questions, therefore, which have been present on appeal can be stated thus: Was the damage suffered by the plaintiff too remote? Put otherwise, was her activity which I have so farbriefly described, and from which the damage ensued, not a natural and probable consequence of the negligent act of the defendants within the famous formula in Hadley v. Baxendale? Second, if it was not too remote, then was the plaintiff herself guilty of some degree of fault, of what is called contributory negligence, soas to reduce the total liability to her of the defendants?
I return now for a more close consideration of the exact facts which I have so far briefly described as they are stated in the evidence, and as the learned Judge found them. But I must observe (and it is not unimportant) that there was here no claimor suggestion on the part of the plaintiff that she was acting in panic. In other words, this is not a case in which it was said that what the plaintiff did, if it was mistaken in any degree, was something done in what is called "the agony of the moment".
I now return to the facts. As I have stated, the plaintiff (and I gather from the Judgment that the learned Judge was satisfied that she was a truthful and careful witness) finding herself immured in this lavatory, had for ten minutes and rather more sought unavailingly to attract attention via the window. What shethen said in her evidence was this: "I thought it possible to climb over the door". It is perhaps important to add to the measurements I have given (namely, 7 ft. high for the door) three others; that the top of the lavatory seat was about 1 ft. 5 ins. from the ground; that the front of it was about 2 ft., 8 ins. from the door, and that the plaintiff herself - apart, I gather, from any addition by means of heeled shoes - is 5ft. 4 ins, tall. It will follow from these figures that, again apart from any added height given by her shoes, the top of the plaintiff's head, if she stood upon the seat of the lavatory, would still be very slightly below the level of the top of the door though I do not myself think that you could or ought to assume against her that she should have known that before she started her activity.
I return to the evidence: "I thought it possible to climb over door. I stood on pan. I held cistern with left hand. Other hand on top of door. I put foot on toilet fixture". Then she proceeded as follows: "I realised" - that must mean at that point - "I could not got enough leverage to got myself to top of door. I decided to climb down again by moving foot from toilet fixture back to seat. My foot slipped from fixture. Fell on right foot". In cross-examination she said: "I was fully confident I could do it" - that must I think in the context mean that before she started on this operation, she was fully confident that she would be able to climb over the top of the door. "I could not get hand through window. I did try"; and then in re-examination and by way of explanation of what form the acrobatic performance would take, she said: "I was going to got on top of door, swivel my legs round, lower myself by hands".
As I have said, it seems from this evidence clearly to follow that the plaintiff, acting quite calmly and on reflection, thought that she would, or at least might, be able to got out of this cubicle by climbing over the top of the door; that she achieved the first stage of that operation; and then, quite sensibly, and without trying anything hazardous or impossible, concluded that after all she was wrong, and that she could not do it. She thereupon proceeded, as I have said, to lower herself in order to regain the ground. It seems to me, therefore, that, so far 'she must be taken as having acted entirely rationally. I cannot for my part think that she could be condemned for having failed to see from the very start that the whole thing was impossible; and, second, it appears to me to be quite clear that there was no damage suffered by her from anything that she did in what I call the first stage of the operation. In other words, the damage did not flow from attempting to do something which she could not do, and had no business to try to do. The damage was suffered by her after she had realised that the attempt could not be carried out, and while she was trying to return to the ground.
The findings of the learned Judge upon this matter arc expressed as follows. After stating his conclusion about the negligence, he said: "There is, however, a second question. The plaintiff had loft her husband ton minutes before, and he know where she was going, and that the bus was duo to leave in twenty minutes. She had been in the lavatory for ten minutes without avail before she attempted to climb out, and the time for the bus was approaching. What would have been a reasonable thing for hey to do? To climb out was a very hazardous undertaking, Mr Davis says that; it was perfectly reasonable for a lady of thirty-six with shirts and, no doubt, high heels, to do it". He wont on a little later: "The consequences might have been very serious indeed. I think what she was undertaking was an exceedingly perilous maneeuvre. It does not follow that a person put in difficulty may not undertake a risk", and there is a reference to the stage coach ease, Jones v. Boyco. "I must apply a balance between risk taken by the plaintiff against the consequences of the defendants' breach of duty. The plaintiff was not in any sort of danger, nor indeed in any real discomfort. It was not as though it were late at night. She knew, or ought to have known, that at 8.32 a.m. her husband must come and find out what had happened to her. The only consequence would have been the wrath of hor husband, and an hour's delay, She took an extremely dangerous oourso, and I have to balanco the inconvenience against the danger. I feel this case is similar to Adams v. Lancashire &...
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