Scott v Green & Sons (A Firm)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DAVIES,LORD JUSTICE WIDGERY |
| Judgment Date | 15 January 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0115-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 January 1969 |
[1969] EWCA Civ J0115-1
In The Supreme Court of Judicature
Court of Appeal
Appeal of defendants from judgment of Judge Nance at Liverpool County Court on 1st April, 1968.
The Master of the Rolls (Lord Denning),
Lord Justice Davies and
Lord Justice Widgery.
Mr. W.D.T., HODGSON, Q.C., and Mr. W.R. WICKHAN (instructed by Messrs. Herbert Smith & Co., agents for Messrs. James Chapman & Co., Manchester) appeared on behalf of the Appellant Defendants.
Mr. R.H. FORREST, Q.C., and MR. D.I. BULMER (instructed by Messrs. E. Rex Makin & Co, Liverpool) appeared on behalf of the Respondent Plaintiff.
We need not trouble you, Kr. Hodgson.
On 17th October, 1966, Mrs. Scott was walking along the pavement of Mount Vernon Street in Liverpool. She stepped on to a flagstone opposite No. 9. It was over the cellar of No. 9. It gave way. She fell into the cellar and was injured, fortunately not severely. She claimed damages against Green & Sons, the owners and occupiers of No. 9 Mount Vernon Street. She said that they were under an absolute duty to keep the flagstone in good condition and repair by reason of section 154 (5) of the Highways Act, 1959.
At the trial it was found quite clearly that Green & Sons, the occupiers of the house, were not guilty of any fault whatsoever. The explanation of the accident was this: A firm of contractors were working at a housing site on the other side of the road. A few minutes before the accident, one of the big lorries of the contractors backed across the road. It went back much too far. It went over the kerb and on to this flagstone. It weakened it and left it in a dangerous condition. Very soon afterwards Mrs. Scott walked along, and the flagstone gave way. Green & Sons were not one whit to blame. They did not know what had happened. They could not be expected to repair the flagstone or give any warning, because it had all happened only a few minutes before. If Mrs Scott or her advisers could have found the driver of the lorry or the owners, she would no doubt have sued them2 because they were obviously the cause of all the trouble. But she could not trace them. So she sued Green & Sons, the occupiers of the house. The Judge found Green & Sons liable. He did so reluctantly. He thought that under the Act there was an absolute liability on the occupiers of the house. They appeal to this Court.
At common law the liability of the occupier in this respect depends on whether the pavement (including the flagstone) has been dedicated to the public as a footway. If it has been dedicated to the public, the duty of repair lies on the public and not on the occupier, see Robbins v. Jones (1863) 15 C.B., N.3. 221.
But if it has not been so dedicated, the duty to repair rests prima facie on the occupier, see Pretty v. Brickmore. L.R. 8 C.P. 401. But the common law in this respect has been transformed by statute. The responsibility of the occupier no longer depends on whether the pavement has been dedicated to the public or not. He is responsible in either case by virtue of section 154 (5) of the Highways Art, 1959" which replaces earlier statutes to the same effect. It says:
"Every vault, arch and cellar under a street, and every opening in the surface of any street into any vault, arch or cellar there under, and every door or covering to any such opening, and every cellar head, grating, light and coal-hole in the surface of a street, and all landings, flags or stones of the street by which they are supported, shall be kept in good condition and repair by the owner or occupier of the vault, arch or cellar, or of the premises to which it belongs".
The next sub-section (6) says that if default is made in complying with that subsection (5), the local authority may do it themselves and recover the expense from the owner or occupier.
The question is, What is the remedy for a breach of subsection (5)? Is the only remedy that given by sub-section (6)? Or is it possible for a passer-by, who is injured, to bring a civil action for damages? This depends on the true interpretation of the statute.
In my opinion a breach of sub-section (5) does not by itself give rise to a civil action. It is not like a breach of duty under the Factories Acts: for there the statutory duty on the occupier is absolute; and an injured person can bring an action for the breach of it, even though the occupier has not been negligent. Here it is different. The statute does not by itself give rise to a civil action, but it forms the foundation on which the common law can build a cause of action. The statute clearly gives to the occupier a sufficient degree of control of the flagstone or grating over his cellar or basement so as to enable him to repair it, no matter whether it is dedicated to the public...
To continue reading
Request your trial
-
Dutton v Bognor Regis Urban District Council
...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 of a house has a responsibility in re......
- Romeo v Conservation Commission of the Northern Territory