Trevett v Lee

This case arose out of an unfortunate accident which occasioned to the first Plaintiff, Mrs. Mary Blanche Trevett, personal injuries in a country lane on the 21st March, 1953. Mrs. Trevett was on the morning of that day, as agent for or servant of her husband, the second Plaintiff, engaged upon delivering milk on a milk round, and she was proceeding along and indeed up (for the lane was upon a slope) a highway known as Clay Lane. Puncknoll, in the County of Dorset. She came to a point on that lane where the highway passed and abutted upon the premises of the Defendants. It appears that the Defendants' house, being erected, as I have said, immediately adjacent to the road, was so equipped and furnished that it had water sanitary arrangements, but it was not upon any general or public supply of water. For domestic and other uses the water for the Defendants' house was accumulated in ordinary circumstances from rainfall in a tank on the premises, but in time of dry weather that tank was not sufficient for the ordinary requirements of the house judged by the ordinary standards of living of today. On the other side of this lane from the Defendants' house, however, there happened to be a tank or water supply fed from on artesian well or a spring, and that supply even in periods of drought was always adequate and enabled water to be taken from it to supply the ordinary needs of the Defendants.

The method which, according to the evidence, the Defendants adopted, when these dry conditions made it necessary or desirable for them to do so was that they made use of a small garden hose-pipe of an internal diameter of half an inch. This pipe was attached to the tank or supply on the far side of the road and laid across the surface of the road, not exactly across in the sense of being at right angles to the direction of the road, but somewhat at an angle across it into the promises of the Defendants. In the course of time - it tooknormally, I gather, a matter of a few hours - by process of gravity water from the supply on the fur side of the road filled the tank which was on the Defendants' premises and thereby gave to the Defendants the required supply of water for their domestic purposes.

On the morning to which I have alluded, namely, 21st March, 1953, this process of taking water by means of a hose-pipe was being employed in fact by the Defendants. Mrs. Trevett proceeding up the hill with crates of milk bottles in each hand saw the pipe. When she came to it, however, she misjudged her stride. Instead of stepping clean over it, her heel trod upon the pipe, the pipe rolled or moved under the weight of her heel, Mrs. Trevett was anxious that she should not break the milk bottles if it could be avoided and, as a consequence of her attempt to save the bottles, she lost her balance and fell heavily and suffered injuries to her parson which caused her pain, and in respect of which (if damages were proper to be awarded) the learned Judge arrived at a figure by way of compensation of £550. It will be seen, therefore, that from Mrs. Trevett's point of view her accident was not unsubstantial, and that it was on any view of it most unfortunate for her that she suffered as she did.

It does not follow that because a man or a woman falls in the street and is hurt, or even grievously hurt, somebody else ought to pay damages, either for nuisance or negligence, or on any other ground, though I sometimes confess to a feeling that that view is apt to be somewhat generally entertained.

Mrs. Trevett and her husband sought to recover damages in this case from the Defendants both on the ground of nuisance and on the ground of negligence. The alleged negligence (if I may dispose of that matter quite briefly) was, according to the claim, that the Defendants had insufficiently warned passers-by of the presence of the pipe. Upon that question the learned Judge's conclusion was that any negligence of thatcharacter (if such there was) was extinguished altogether by the contributory negligence of the Plaintiff, Mrs. Trevett, in failing to step over the pipe.

Since this matter of contributory negligence will arise again hereafter, I desire to state somewhat carefully that upon this matter, the contributory negligence, the fault is in my view to be judged in the light of the alleged negligence of the Defendants, which was, as I have said, failure to draw attention to the presence of the pipe, and - I an reading from the Judgment - "if necessary, to assist persons over it". As will be remembered, in this case it was established that the Plaintiff in fact saw the pipe, and she was not in fact infirm. And the claim in this Court has been, not upon the ground of negligence, but upon the other head of nuisance. I therefore need say no more upon the negligence part of the case than that so far us I can see there is no around upon which the Judge's findings in respect of it could be successfully challenged.

The case bused on nuisance has been of a much more formidable character and has led to arguments to which I for one an much indebted for their skill and interest.

I have said that this lane, Clay Lune, was a highway, and it is axiomatic us a general proposition that a man who obstructs a highway commits, and is liable to be charged in respect of the commission of, a public nuisance. But that short statement is in truth somewhat of an over-simplification, for there is no doubt of this, that not every obstruction of a highway is, or constitutes, a public nuisance. It is also well established, of course, that a private individual can only sue in respect of a public nuisance if he or she suffers some special damage us a result of it. So far us this case is concerned, that last point may be laid aside, for if there was here a public nuisance and if the Plaintiff's injuries were properly attributable to the existence of that nuisance, thenbeyond a peradventure she did suffer special damage as a result of it.

The law as regards obstructions to highways is conveniently stated in a passage in the 11th Edition of Salmond on Torts, at page 303: "A nuisance to a highway consists either in obstructing it or in rendering it dangerous", and then a number of examples are given. I will not take up time reading them, but a reference to these examples seems to me to show that prima facie, at any rate, when you speak of an obstruction to a highway you mean something which permanently or temporarily removes the whole or part of the highway from public use altogether. To take the simplest and most obvious case, if I erect a fence or a wall half way across the road, I obstruct it, because to that extent the road ceases to be usable at that point as such. The alternative in the text which I read ("or in rendering it dangerous") adds a different conception of wrongful interference, namely, the putting upon a highway of something which, though it does not obstruct, that is, bar the highway in the sense that I have already mentioned, yet is liable to make it dangerous. Again, one example will suffice: if I make a small hole in the highway difficult to see, or put some greasy substance upon it, so that treading in the hole or on the substance is liable to cause a man to fall as a natural consequence of doing so, then it may be that I have caused a nuisance to the highway, not by obstructing it, but by rendering it dangerous.

In the present case the learned Judge in the course of his very careful Judgment used this language: "With regard to the claim on the ground of nuisance, I am satisfied that if the pipe had been placed where it was by an ordinary member of the public it would amount to a nuisance, in that it obstructed the highway substantially in the case of cyclists and to a certain extent in the case of ordinary pedestrians".Mr. Stock contended that that was a finding of fact, and there being some evidence upon which the finding can be based it was accordingly conclusive in this Court. I do not myself regard, and I do not think it is possible to regard, as a finding of fact a conclusion based upon a hypothesis: "I an satisfied that if the pipe had been placed where it was by an ordinary member of the public it would amount to a nuisance", etc. For my part, I am not entirely satisfied as at present advised (if it were necessary to come to a conclusion upon this matter) that I should agree with the learned Judge's statement that I have read. As I have indicated, I do not think it necessary to express a conclusion upon that matter. But by the phrase "an ordinary member of the public" I take the Judge to be referring to a parson other than an adjoining house owner who put the pipe there for some purposes of his own. He is saying, in other words, that if a member of the public - though perhaps he would hardly be regarded us "ordinary" - for no purpose except for his own whim or entertainment laid a hose-pipe across a road that person would be creating a nuisance. As I have said, I prefer upon that matter to express no final view. I am not satisfied as at present advised whether a pipe of this dimension would be an obstruction within the sense in which I think that word is used. On the other hand, particularly having regard to the evidence in this case, it may well be that such an object is...