Trespassers Will Be ... Disappointed - Maloney v Torfaen CBC, Keown v Coventry Healthcare NHS Trust
Trespassers Will Be ... Disappointed - Maloney v Torfaen CBC, Keown v Coventry Healthcare NHS Trust
Summary
Two recent Court of Appeal decisions have followed the lead set by the House of Lords in Tomlinson v Congleton BC [2003] UKHL 47, [2004] 1 AC 46 and rejected attempts by trespassers to claim damages for severe personal injuries from occupiers of land. In doing so, considerable doubt has been cast on the correctness of a 2005 High Court decision which adopted what appeared to be a more favourable approach for claimants.
The facts in Maloney v Torfaen CBC [2005] EWCA Civ 1762
M, aged 34, had been out drinking heavily and was taking a short-cut late at night back to his flat in Cwmbran. He slipped and fell from a sloping grass bank several feet onto the concrete floor of a pedestrian subway. The local council, T, owned and occupied the bank. There was no fence on the edge of the bank over which M fell, although there was a fence on the other side of the subway.
The trial judge rejected with little difficulty the allegation that M had express or implied permission to be on the grass embankment, defeating M’s claim under the Occupiers’ Liability Act 1957. The focus was then on whether M could establish a claim under the Occupiers’ Liability Act 1984. The trial judge rejected this claim on the facts as M failed to establish two of the necessary criteria for liability: T was not aware of the danger (nor did T have reasonable grounds to believe it existed), nor did T know or have reasonable grounds to believe that M was or might come into the vicinity of the danger.
In any case, M would have been found two-thirds contributorily negligent. The Court of Appeal dismissed M’s appeal and indicated that the contributory negligence apportionment was unassailable.
A danger due to the state of the premises? Maloney says yes
In Maloney, the judge found, and the Court of Appeal accepted, that M’s accident was a result of a danger due to the state of the premises, which is one of the threshold requirements for any duty to arise under section 1(1)(a) of the 1984 Act. T’s contrary argument was that the accident was not caused by the state of the premises, but by M’s actions in using the grass bank as a shortcut whilst drunk. The Court of Appeal said that this argument went only to contributory negligence rather than the existence of a duty in the first place – Laws LJ saying, at paragraph 27, “This is certainly not the case in which to get involved with the semantics, not to say the metaphysics, of causation”.
But, with respect, Laws LJ’s remark does not deal with the key point. In Tomlinson, Lord Hoffmann said (paragraph 27) that a person who goes mountaineering incurs the risk that he might stumble, but the risk of injury could not be said to arise out of the state of the premises – “otherwise any premises can be said to be dangerous to someone who chooses to use them for some dangerous activity.” Indeed, in Donoghue v Folkestone Properties [2003] EWCA Civ 231, [2003] QB 1008 (which was approved by the House of Lords in Tomlinson), Lord Phillips MR said, “If a trespasser jumps down a bank and injures himself by contact with the ground, his injury cannot properly be said to be attributable to the state of the premises”. If the risk of injury from falling on a mountain, or from jumping down a bank, is not because of the “state of the premises”, why is Maloney right in saying that the risk of slipping off a grass embankment arises because of the “state of the premises”? There is no mention in the judgment of any unusual or latent feature of the landscape that, exceptionally, rendered T liable.
There is no analysis in the Court of Appeal’s judgment of this argument, despite the fact that Laws LJ was one of the three appellate judges in Donoghue. The importance of this point when determining whether any duty under the Act is owed is shown by Keown.
The facts in Keown v Coventry Healthcare NHS Trust [2006] EWCA Civ 39
K’s accident occurred at Gulson Hospital in Coventry. One building, used for student accommodation and a day clinic, had two external fire escapes going up to the third floor. K, aged 11, had seen other children climb the underside of one of the fire escapes using cross-bars on the outside. Whilst showing his sister and friends how it was done, he fell 30 feet, suffering serious injuries including a significant brain injury. The claim under the 1984 Act succeeded at trial, albeit reduced by two-thirds for contributory negligence. The Court of Appeal, however, allowed the Trust’s appeal and dismissed K’s claim.
A danger due to the state of the premises? Keown says no.
A differently constituted Court of Appeal in Keown adopted the correct approach to this question. The Recorder’s finding that there was a danger due to the state of the premises was overturned. The Trust argued that the fire escape was not itself dangerous and K created the danger by climbing on the outside of the fire escape, in the same way that premises with trees growing on them cannot be said to be dangerous merely because someone decides to climb a tree. Longmore LJ (whose minority view in the Court of Appeal in Tomlinson was vindicated on further appeal) said that Tomlinson and Donoghue determined the points in the Trust’s favour. As Lewison J put it (paragraph 28), “The threshold question is not whether there is a risk of suffering injury by reason of the state of the premises. It is whether there is a risk of injury by any danger due to the state of the premises. Thus in order for the threshold question to be answered in the affirmative it must be shown that the premises were inherently dangerous.” (Lewison J’s emphasis.)
K’s age, on the facts, made no difference. Tomlinson said that there would only be a duty to protect against obvious risks if there was no genuine or informed choice, such as a child’s inability to recognise danger, but on the Recorder’s findings, K knew that what he was doing was dangerous and carried a risk of falling. K’s claim fell at the first hurdle. To quote Lewison J again (paragraph 24), “If the trial judge was right, then occupiers of buildings up and down the country will have to ‘child-proof’ their buildings in case children try to climb them.”
K relied heavily, but unsuccessfully, on the decision in Young v Kent CC [2005] EWHC 1342 (QB) where a 12 year old boy with some learning difficulties went onto the roof of a school building (where an after-school youth club was being held) in order to retrieve a football. Y jumped on a skylight, which was brittle, and fell through, suffering severe injuries. Liability was established under the 1984 Act, with a 50% deduction for contributory negligence. Morison J said that the state of the premises did pose a danger, in that children could fall off the roof or be hurt by falling through the skylight. In Keown, Longmore LJ said that if Morison J was saying that a roof with brittle skylights is dangerous premises, that statement would be less controversial than saying that a risk of any injury on any roof would be due to the state of the premises. (However, given that skylights are not there to be walked on, still less jumped upon, is it fair to criticise a skylight for not bearing a child’s weight? Or is that like criticising a mountain because it is steep?) Lewison J went further. After saying that a roof was not dangerous merely because one could fall off it, he said that if the Trust’s point had been argued in Young, Morison J may have concluded that the only danger was attributable to the claimant’s own activity in jumping on the skylight, rather than any inherent danger in the premises themselves. Mummery LJ, perhaps unhelpfully on this point, agreed with both judgments without further comment of his own.
As an aside, could Young be supported on the alternative argument of the duty to protect against obvious risks where a child was unable to appreciate danger? This was not how the case was decided, but on the findings of Morison J this argument could not have succeeded anyway. Y knew he was misbehaving by going on the roof, he knew it would be inappropriate and an act of vandalism to step on or break the skylight, and that he knew it was dangerous, even if he did not realise the fragility of the skylight and would not have jumped on it if he had known of the danger. His learning difficulty made him slightly less aware of the danger but he was still sufficiently blameworthy to have a finding of 50% contributory negligence, which would be inconsistent with the argument that there was a duty to protect him from a danger he could not appreciate.
The other criteria for establishing a duty to a trespasser
The conclusions reached in Maloney by the trial judge were not overturned on appeal and do not call for more than a brief comment here. M relied on two other accidents, although the judge found them distinguishable on the facts and hence of little relevance – one was 20 years before and involved someone falling over the road forming the bridge over the subway; the other was just over three months before M’s accident, where a pedestrian died after falling into the underpass from a different embankment, mistakenly thinking in the absence of streetlights that there was a path next to the grass bank instead of a drop. The Court of Appeal also commented that M did not contend that the danger of falling off the unfenced edge of the bank would have been obvious to anyone looking at it, but presumably this was because it would have fatally undermined M’s argument on the “danger due to the state of the premises” point.
Although the further comments in Keown are clearly obiter (since the claim failed at the threshold question), they are worth noting. The Court of Appeal considered whether the risk of injury from falling from the fire escape was one against which the Trust could reasonably be expected to offer K some protection (section 1(3)(c)). Longmore LJ’s tentative view, with which Mummery LJ and Lewison J agreed, was that this would not be reasonable. If it had to offer such protection, then it would have to offer the same protection against falling from drain pipes, balconies, trees, roofs (if Young was correct) etc. This would not be a proper use of NHS resources. Furthermore, it was more likely that the risk would be addressed by restricting public access to the grounds rather than using extra fencing or guards. This had in fact happened – the hospital was becoming like a fortress and the public amenities of passing through the grounds to neighbouring streets and of children harmlessly playing in the grounds had been lost. It was not reasonable to expect this to happen to avoid the occasional injury.
Conclusion
Maloney emphasises that strong evidence will be needed to establish the criteria for liability under the 1984 Act. Keown goes further and places a renewed emphasis on the need to separate out whether the risk of injury is because of a danger due to the state of the premises, or whether the risk of injury arises from the claimant’s activity on premises (natural or man-made) that are not themselves inherently dangerous. The recognition of the deleterious effect on public amenity of risk prevention measures is noticeable, and follows similar comments by Lord Hoffmann and Lord Scott in Tomlinson.
Overall, good news for occupiers of premises but disappointment for trespassers.