Jersey Unreported Judgments

[2004]JRC180

royal court

(Samedi Division)

 

12^th October 2004 

 

 

 

 

Action for damages for personal injury suffered by the Plaintiff - Damages agreed at £14,000 - Court concerned only with question of liability. 

 

Advocate D. Gilbert for the Plaintiff

Advocate D. J. Benest for the Defendant

 

 

 

judgment

the deputy bailiff:

1.        This is an action claiming damages for personal injury suffered by the plaintiff when falling and fracturing her ankle.  Damages have been agreed at £14,000 and we are concerned only with the question of liability.  The case raises interesting questions as to the extent of the duty of an occupier towards a visitor in relation to hazards on adjoining land. 

The facts

2.        Much of the evidence was not in dispute.  We heard oral evidence from the plaintiff, Mr. Bernard Ollierou (by video link from Thailand), Miss Sunan Yangniyom and Mr. Dennis Corrigan on behalf of the plaintiff and Mr. Gordon Hamilton (manager of the White Horse Inn) and Mr. Serge Mezec, an official of the Public Services Department, on behalf of the defendant. In addition, there was an agreed experts' report.  Much of the evidence was directed towards establishing the exact time of the accident.  Indeed, in her opening, Miss Gilbert placed great weight on this and seemed to be holding to her pleading, namely that the accident took place at 9.30 p.m.  In the course of the hearing, a record of Miss Yangniyom's mobile telephone calls was produced which rendered much of this evidence unnecessary.  The relevance of the timing was as to the degree of light which could be expected to be present at the time of the accident.

3.        At Le Dicq, Havre des Pas, there is a slipway which leads from the road down to the beach.  The slipway is in a form which is very familiar to all those who live in the Island.  It consists of cobbled granite stones with cement pointing.  The granite was laid in a traditional manner with a prominent upstanding edge in order to assist the passage of horses pulling carts laden with vraic from the beaches.  On each side of the cobbled granite there is a raised granite kerb.  These kerbs hold the slipway together.  As Mr. Mezec put it, Le Dicq is a standard Island Victorian slipway. He also confirmed that the slipways around the Island have never been lit and this applies to the slipway at Le Dicq. 

4.        The White Horse Inn ("the Inn") is situated immediately to the west of the slipway at Le Dicq.  The eastern edge of the Inn comprises a high wall which abuts the western kerb of the slipway.  Behind the wall lies what is known as the beer garden of the Inn.  This is an outside area where customers of the Inn can sit and drink. Stone steps lead down from the beer garden to an entrance gate in the wall which gives immediately on to the slipway.  Thus, as one exits from the Inn via this gateway, one steps first on to the kerb from the bottom step and then from the kerb on to the cobbled stone.  The undisputed expert evidence was that, in the area immediately outside the entrance to the beer garden, the height of the kerb edge was 100-110 millimetres (approximately 4 inches) and the distance of the edge of the kerb from the wall of the Inn was 685-725 millimetres (i.e. something just over two feet); the measurements varied fractionally across the width of the entrance.  Furthermore, the slipway and the kerb were of course sloping down towards the beach and this was measured at an average inclination of 1 in 15.  The entrance in the wall of the Inn has been there since at least 1969 and probably much longer. 

5.        Further down the slipway, also on the western side, is the Dicq Shack Thai Café ("the Shack").  The Shack is a wooden hut which covers the kerb and part of the cobbled stone.  It is a takeaway Thai restaurant.  At the material time the Shack was run by Mr. Bernard Ollierou.  The plaintiff is a friend of his wife Lamyai Ollierou and was in the habit of helping out at the Shack.  She did this approximately once a week.

6.        On Thursday 9th August 2001, the plaintiff had been helping out at the Shack, which normally closes at about 9.00 p.m.  The plaintiff, Mrs. Ollierou and another friend, Miss Sunan Yangniyom decided to go for a drink at the Inn.  Together with Mrs. Ollierou's five year old son James, they walked up the slipway from the Shack and went into the beer garden via the slipway entrance to which we have referred.  Having purchased their drinks, they decided to sit in the beer garden as it was a warm evening.  Almost immediately, James decided that he wished to return to his father, who was still cleaning up at the Shack.  The plaintiff offered to accompany James.  She followed him down the steps out of the beer garden and on to the slipway.  It is not disputed that she did not see the edge of the kerb where it drops to meet the cobbled granite of the slipway and stumbled or fell to the ground at that point.  She suffered immediate pain and was unable to get up.  She shouted out for help and it transpired subsequently that her left ankle was fractured. 

7.        Miss Yangniyom and Mrs. Ollierou heard her cry out and came down the steps from the beer garden on to the slipway.  They tried to lift her up but without success.  Mrs. Ollierou went to get her husband from the Shack.  He came up to help and decided to drive the plaintiff to the home that she shared with her fiancé, Mr. Dennis Corrigan.  Miss Yangniyom then used her mobile to telephone Mr. Corrigan to explain what had happened and that Mr. Ollierou would be bringing the plaintiff home.  This duly occurred.  Later that evening, it became clear to Mr. Corrigan that the plaintiff was in considerable pain and he arranged for her to be taken to the hospital, where she was treated. 

8.        It appeared at one stage that there was likely to be a dispute as to when the accident occurred.  The plaintiff had alleged that it took place at about 9.30 p.m. whereas, on the basis of some remarks which the plaintiff was said to have made to hospital staff later that evening, the defendant wished to investigate whether it had in fact taken place at about 8.30 p.m.  We should add that the defendant itself had no knowledge of when the incident occurred because no-one at the Inn had been notified that evening that anything untoward had happened.  The importance of the timing relates to the amount of light which would have been present at the scene.  However, as already mentioned, during the course of the hearing, Miss Yangniyom's mobile telephone records were produced which showed that the time at which she telephoned Mr. Corrigan was a matter of seconds before 9.23 p.m. 

9.        In her evidence, Miss Yangniyom estimated that it was about three minutes between her hearing the plaintiff call out and getting down the steps and finding the plaintiff on the ground; it was a further seven to eight minutes between her finding the plaintiff and the arrival of Mr. Ollierou at the scene after being fetched from the Shack; and a further four to five minutes after Mr. Ollierou arrived before she telephoned the plaintiff's boyfriend.  Working backwards from 9.23, (the time when the telephone call was made) this puts the time of the accident at between 9.07 and 9.09.  However, estimates of the passage of time on occasions such as this are notoriously unreliable.  It seems to the Court highly unlikely that Miss Yangniyom and Mrs. Ollierou took a full three minutes to respond to the plaintiff's cry.  They only had to move down a few steps on to the slipway.  It also seems unlikely that, having discovered that they could not lift the plaintiff, it was a further seven to eight minutes before Mr. Ollierou arrived.  The Shack is only a short distance down the slipway.  It also seems unlikely that it was a full five minutes after Mr. Ollierou's arrival at the scene before the plaintiff telephoned Mr. Corrigan to tell him what had happened.  It is, of course, not possible to be certain, but doing the best we can, we find that the accident probably occurred between 9.10 and 9.15. 

10.      The Court was presented with two expert reports.  Mr. R. N. Perryman, on behalf of the plaintiff and Mr. Jonathan Coyde on behalf of the defendant.  Their reports were directed principally towards the amount of light which would have been present at the scene at the time of the accident.  There was some lighting in the area.  There was a street light at the top of the slipway about 10 metres from the slipway entrance to the Inn, a pub sign on the wall of the Inn more or less opposite the street light, light from two windows in the public toilets opposite the slipway entrance and some small lights on the top of the wall of the beer garden.  Ultimately the experts reached agreed conclusions as to the amount of light.  At 9.30 p.m. the level of light outside the slipway entrance to the Inn was low and it was not possible to make any meaningful measurement of light intensity.  They agreed that it was unlikely that the plaintiff would have seen the edge of the kerb or would have seen the difference between the kerb and the cobbled slipway at 9.30.  The alternative sources of light in the vicinity would have had little effect on illuminating the area adjacent to the slipway entrance to the Inn.  They further agreed that the end of civil twilight (the moment when the centre of the sun is geometrically 6 degrees below the horizon) was at 9.14 on the day in question and at that time it would have been dark.  They further agreed that, as the plaintiff walked down the steps to the slipway entrance, she would have cast a shadow directly in front of her, blocking some of the illumination provided by any lighting within the beer garden.  They further agreed that, had the accident taken place at 8.30 p.m., there would have been plenty of light for the plaintiff to have seen the edge of the kerb.

11.      Given our finding that the accident occurred between 9.10 p.m. and 9.15 p.m. it is clear that the key finding is that at 9.14 (civil twilight) it was 'dark'.  Unfortunately neither expert was called to give evidence and it was therefore not possible to ascertain whether there would have been any deterioration in the amount of light between 9.14 and 9.30.  It is therefore not entirely clear whether their agreed evidence that at 9.30 it was unlikely that the plaintiff would have seen the edge of the kerb, is equally applicable to the situation at 9.14.  However, doing the best we can, we find that, given their evidence that it would have been 'dark' at 9.14, the likelihood is that the situation at the time of the accident would not have been materially different to that which existed at 9.30 and that accordingly, at the time of the accident, the plaintiff would have been unlikely to have seen the edge of the kerb or the difference between the kerb and the cobbled stone. 

12.      The evidence on behalf of the defendant was to the effect that neither the defendant nor the Public Services Department was aware of any previous accident in the area where the plaintiff fell or of any complaint that the lighting was inadequate.   

The parties' respective positions

13.      Although as originally pleaded the plaintiff's case was somewhat wider (referring to the uneven nature of the steps leading down from the beer garden to the slipway), her case as put by Miss Gilbert is ultimately very simple.  She asserts that, in the absence of a warning or of illumination of the area, the edge of the kerb amounted to a concealed hazard.  The plaintiff could not see it.  The hazard was immediately adjacent to the Inn; it lay within a metre of the boundary of the Inn.  The defendant knew that customers regularly used the slipway entrance to gain access to and egress from the Inn and that this took place during the hours of darkness as well as during the day.  Their duty to take reasonable care for their customers did not cease at the boundary of the property.  Given that the defendant was the owner of commercial premises and derived financial advantage from the presence of customers at the Inn, it owed a duty of care to ensure that access to and egress from its property were safe.  Whilst it was conceded that the defendant could not do anything about the existence of the kerb, as it lay on someone else's property, a reasonable and prudent innkeeper would either have placed a warning as to the 4" kerb edge or would have placed a light on its property which illuminated the area of the slipway which lay immediately outside the entrance or would have closed the gate after dark to prevent its use.  

14.      The defendant, on the other hand, submitted that the duty of an occupier cannot extend to neighbouring property.  The duty is owed to visitors whilst they are situated on the occupier's property.  At the time of the incident, the plaintiff was no longer a visitor of the defendant and the defendant owed her no duty of care.  If, contrary to that submission, the defendant did owe her a duty of care, the duty had not been breached in this case.  If that were held to be wrong, the primary responsibility for the accident lay with the plaintiff and there should therefore be a high finding of contributory negligence. 

The law

15.      Historically, in both Jersey and England, the duty owed by an occupier of property depended upon whether the visitor to his property was an invitee or a licensee.  This distinction was abolished in England by the Occupier's Liability Act 1957 ("the 1957 Act").  The long title and relevant provisions read as follows:-

"An Act to amend the law of England and Wales as to the liability of occupiers and others for injury or damage resulting to persons or goods lawfully on any land or other property from dangers due to the state of the property or to things done or omitted to be done there ...

1(1)     The rules enacted by the two next following sections shall have effect, in place of the rules of the common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them. 

(2)       The rules so enacted shall regulate the nature of the duty imposed by law in consequence of a person's occupation or control of premises and of any invitation or permission he gives (or is to be treated as giving) to another to enter or use the premises, but they shall not alter the rules of the common law as to the persons on whom a duty is so imposed or to whom it is owed;  and accordingly for the purpose of the rules so enacted the persons who are to be treated as an occupier and as his visitors are the same ...... as the persons who would at common law be treated as an occupier and as his invitees or licensees .......

2(1)     An occupier of premises owes the same duty, the 'common duty of care' to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

(2)       The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there."

16.      In Knight v Thackeray's Limited [1997] JLR 279 the Royal Court adopted the approach taken by the Guernsey Court of Appeal in Morton v Paint (1996) 21 Guernsey Law Journal 36 and held that the Court could develop the customary law of Jersey to remove all the old distinctions between invitees and licensees.  The Court in effect adopted the decision of the Guernsey Court of Appeal that an occupier's duty was " .... to have done what a reasonable man would have done in the circumstances by way of response to the risk in so far as foreseeable in accordance with the Donoghue v Stevenson principles of the law of negligence."

17.      In view of the particular issue which arises for decision in this case, it is perhaps helpful to quote from the judgment of Southwell JA in Morton at page 49:-

"In Australian Safeway Stores (Pty) Ltd. v Zaluzna (1987) 162 CLR 479, an appeal from Victoria, the majority (Mason, Wilson, Deane and Dawson JJ) held that the view expressed by Deane J in Hackshaw and Papatonakis represented the common law as applied in Australia.  In the headnote the ratio of their judgment was clearly summarised:

"It is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or both of a special duty qua occupier and a general duty of care was owed.  It is necessary to determine only whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff.  A prerequisite of any such duty is that there should be the necessary degree of proximity of relationship.  The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the entrant or to the class of person of which the entrant is a member.  The measure of the discharge of the duty is what a reasonable man would do in the circumstances by way of response to the foreseeable risk".

In so deciding the High Court set aside the specific limited duties previously established in the common law as owed to invitees, licensees and trespassers respectively, held that to each an occupier owes (if he owes any duty) the general duty of care established by Donoghue v Stevenson, and rejected the search for fine distinctions between such a general duty and the previous specific duties owed to different categories of entrant onto or into land or buildings (see Zaluzna at pp-486-488)."

Southwell JA went on in effect to approve the principles set out in Zaluzna and stated that Guernsey law should now be based upon the principles evolved in Donoghue and Zaluzna.

18.      The question which arises in this case is whether the duty of care owed by an occupier can in any circumstances extend to cover a person who, although he may have been or be about to be a visitor (in that he is in the process of leaving or gaining access to the occupier's property) is not on the occupier's land at the time that he suffers injury as a result of a hazard situated upon adjoining land. 

19.      In general, it is clear that the language used both in the 1957 Act and in the many cases to which we have been referred envisages a situation where the visitor is on the occupier's land at the relevant time.  Indeed the long title to the 1957 Act seems clear in this respect.  Furthermore, there is no reported case where the duty owed by an occupier has been held to extend to a person on adjoining land.  Initially, Miss Gilbert sought to place reliance on Riden v A C Billings & Sons Limited (1956) 3 All ER 357.  In that case some contractors undertook work to No.25 Cambrai Place as a result of which they blocked access to No.25.  Access had to be obtained via the forecourt of No.26.  Whilst leaving No.25 and passing over the forecourt of No.26 after dark the plaintiff fell and was injured.  She claimed against the contractors.  The contractors contended that they could not be liable for a danger on adjoining premises over which they had no control.  The Court of Appeal (upheld by the House of Lords) held that this was not a claim against an occupier.  It was a claim against a contractor who had created a dangerous state of things and therefore owed a duty to prevent injury to persons whom they might reasonably expect to be affected by their work.  On the facts, the contractors were liable as their actions had forced the plaintiff to use the more hazardous route across No.26.  Ultimately Miss Gilbert accepted that Riden did not assist her because it was concerned with a quite different situation, namely the duty owed by a contractor who had by his actions caused a dangerous state of things.  However, in passing Denning LJ did make a comment which might be said to assist Mr Benest.  At 362 he said:- 

"[Counsel] admitted

that the contractor was under a duty of care in respect of the premises on which he was working, but he denied that it extended beyond those premises.  Hence he admitted that, if the plaintiff had fallen on the rubble on No.25 whilst going to No.25, the first defendants might have been liable for the danger they created:  but he said that their liability ended when she was not on No.25 at all.  I do not think this limitation is well founded.  It is based on a confusion between the liability of an occupier and the liability of a contractor.  If it was sought to make the occupiers of No.25 liable because they were occupiers and nothing else, their liability would, of course, be confined to No.25: but that is not this case. The first defendants are liable, not because they are occupiers, but because they created a dangerous state of things and they are under a duty to use reasonable care to prevent damage from it."

[Emphasis added]

20.      Nevertheless, Miss Gilbert has been able to point to two cases which assist her.  The first is the case of Dodkins v West Ham United plc (10th February 2000).  This was a case decided in the Shoreditch County Court.  The judgment is not available but the case is noted in Current Law (2000) at para 4226.  We can do no better than set out the decision as it appears in Current Law:-

"Duty of care - visitor to football ground injured on road outside ground - foreseeability of accident and proximate relationship giving rise to duty

D was a season ticket holder at W's stadium.  On August 21, 1996, D went to watch the first match of the season, arriving at the ground about two hours before kick off.  Five yards from the gate into the car park, and directly outside it, was a manhole cover set in the pavement and forming part of the highway.  The cover had been broken, probably by a vehicle entering or leaving the car park that afternoon.  It formed a hazard to visitors attending the ground to see the match.  Security staff hired by W were at the ground all afternoon.  One was stationed at the gate to check and record every vehicle entering or leaving.  The manhole cover was damaged when he was present.  He ought to have seen or heard the conspicuous damage which occurred, but did nothing about it so that when D arrived it was not marked or sectioned off and there was no warning.  D tripped and sprained his ankle.  Another steward, arriving afterwards but unaware of the accident, saw the hazard and immediately took steps to make it safe with traffic cones and a board.  D brought an action for negligence against W, claiming that W owed a duty to its visitors to ensure that access to the ground was properly monitored and reasonably safe, a duty extending beyond its actual boundary.  W submitted that there was no duty of care as the hazard was outside the boundary of its property, being located on the highway.

Held, that the fact that the hazard was outside W's boundary was not conclusive.  The injury was foreseeable; the relationship was of sufficient proximity to give rise to the duty alleged, and it was fair and reasonable to impose that duty.  Accordingly, W was liable to D.  Damages were assessed at £4,885, including special damages and interest.  Permission was granted to W to appeal on liability."

21.      It is of course not possible to ascertain the detailed reasoning without access to the judgment but it would seem from the report that the judge did not rely upon the 1957 Act.  He found a common law, duty of care based upon the three well-known tests, namely foreseeability, proximity and whether it is fair and reasonable.  On the facts of that case, the occupier owed a duty of care towards a person who was coming to visit the occupier's property.

22.      Secondly, Miss Gilbert relies upon the Scottish case of McCluskey v Lord Advocate (1994) SLT (Notes) 452.  The actual decision in the case does not assist her but she suggests that it can clearly be implied from the decision that the court was of the view that the occupier of land could be liable in respect of injury caused by a danger on adjoining land.  In that case the plaintiff had been walking on forestry walks which were under the management (and occupation as the judge found) of the Forestry Commission.  The walks formed a network across rural land owned by others.  The Forestry Commission was found to be in occupation only of the forestry walks.  At one point, the plaintiff left the forestry walk and took a path known as the Fishermen's Path, in order to obtain a view of some waterfalls.  The Fishermen's Path was a narrow rough path which was not under the control of the Forestry Commission and was simply used by people to walk across the rural land.  In the course of doing so the plaintiff fell some 20 ft. from the Fishermen's Path and injured herself.  She brought a claim against the Forestry Commission both under the Scottish equivalent of the 1957 Act and at common law.  Her counsel submitted - and the judge appears to have accepted - that the principles which applied were effectively the same in each case.  The allegation in each case was that the Fishermen's Path constituted a danger and that the Commission had breached its duty of care towards the plaintiff by failing to take steps to prevent persons gaining access to the Fishermen's Path from the authorised forestry walk by, for example, erecting a barrier.  The court found on the facts that the Fishermen's Path was not a danger.  It was a perfectly natural part of the landscape and it was obvious to any reasonable person that it was not a prepared path, was uneven etc.  The claim therefore failed on the facts.  However, the court does not appear to have considered, in relation to either the common law action or the statutory action,  that the fact that the alleged danger was on land lying outside that occupied by the Forestry Commission was of itself a bar to success.  On the contrary, when commenting on the statutory claim, Lord Kirkwood said this (at page 7 of the copy of the judgment with which we were provided):-

"Section 2(1) of the Act provides that an occupier of premises has a duty to show care towards a person entering thereon "in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which the occupier is in law responsible". As I understand the pursuer's case, it was suggested that the Forestry Commission should have erected a barrier at the edge of the viewpoint (which was part of the forestry walk) with a view to preventing visitors from using the Fishermen's Path as it constituted a danger, and that by omitting to do so the Commission was in breach of its duty to the pursuer.  I accept that the fact that the accident took place on land which was not occupied by, or under the control of, the Forestry Commission would not prevent a successful claim being made by the pursuer provided that a danger existed which was due to the Commission's omission to erect a barrier on the land which they occupied and the pursuer suffered injury by reason of that danger.  However, in the particular circumstances of this case I do not consider that the Fishermen's Path constituted a 'danger' within the meaning of section 2(1) of the Act."

[Emphasis added].

23.      Miss Gilbert submits that these two cases are persuasive as showing that an occupier may in certain circumstances have a duty towards a visitor to take reasonable steps to prevent that visitor from suffering injury on adjoining property as a result of a danger or hazard lying on that adjoining property of which the occupier is aware.

24.      Mr. Benest, on the other hand, submits that the only basis of liability of an occupier is in respect of a person who is on his land.  The wording of the 1957 Act (see for example the long title set out at paragraph 15 above) is concerned only with persons physically on the property of the occupier.  Similarly all the cases, save the two to which Miss Gilbert referred, were dealing with or envisaging a situation where the visitor was physically on the land of the occupier.  A duty of care should not extend to adjoining property because the occupier has no control over that property.  It is for the occupier of the adjoining property to be responsible for hazards on that property.  Furthermore, to impose a duty in such cases would lead to absurd and illogical results.  He referred to McGeown v Northern Ireland Housing Executive (1994) 3 WLR 187.   In that case the plaintiff lived in a housing estate occupied by the defendant housing authority.  Part of the land of the estate was crossed by footpaths over which the public had acquired a right of way although there had not originally been such a right.  The plaintiff was walking on one of the paths in order to gain access to her home, which she and her husband rented from the housing authority, when she tripped in a hole and broke her leg.  The hole was a danger to persons using the path and resulted from a failure by the housing authority to keep the path in good repair.  In dismissing the claim, the House of Lords re-affirmed the longstanding rule that a person using a public right of way did so by right and that the land owner was not liable to the user of a public right of way for negligent non-feasance (e.g. failure to repair).  Such a person was not a visitor of the occupier of the land over which the right of way passed for the purposes of the 1957 Act even though, in this case, the plaintiff would have been a visitor of the housing authority in respect of the path before it had become a public right of way.

25.      The plaintiff's submission, he said, would therefore lead to the consequence that, where access to property was gained by a public right of way, the occupier of the land over which the right of way lay, would owe no duty of care to a person using the right to gain access to his neighbour's land but the neighbouring occupier would owe a duty of care.  This would be nonsensical.  Such a consequence, he submitted, would follow in the present case.  The slipway was a public right of way and therefore there could be no successful claim against what was formerly the Public Services Committee.  Indeed the plaintiff had accepted this by dropping the action originally brought against the Public Services Committee.  Yet it was alleged that the defendant, as occupier of land which adjoined the slipway, could owe a duty of care towards a person visiting the Inn in respect of a danger situated on the slipway.  Furthermore, if such a duty existed, how far did it extend?  Was it a few feet, a few yards or 100 yards up the road.  It would clearly be absurd to suggest that an occupier of premises had a duty in respect of a danger 100 yards up the road; but where was the limit?

26.      There were further illogical results, he submitted.  If a person fell over the kerb in this case on the way down to the beach, he would clearly not be in any relationship of proximity with the defendant and there could therefore be no question of liability on the part of the defendant.  But if the same person happened to be on his way to or from the Inn, the defendant could be liable. 

27.      Mr. Benest accepted of course that an occupier could be liable in respect of an injury actually suffered on adjoining land provided this arose out of a defect in the land which the visitor was upon.  So, for example, if a visitor to land which contained a wall at the edge of a cliff, where the land at the bottom of the cliff belonged to an adjoining owner, fell off the cliff because of a defect in the wall so that it gave way, the actual injury would no doubt be suffered when the visitor hit the ground on the adjoining land at the foot of the cliff.  But the accident would clearly have arisen because of the defective wall on the defendant's land at a time when the visitor was on the defendant's land (see for example Perkowski v City of Wellington Corporation (1959) AC 53 where a person dived from a springboard occupied by the defendant into shallow sea which was not occupied by the defendant).  But, said Mr. Benest, that was very different from what was being contended for here by the plaintiff.  Here the hazard or danger was on the adjoining land and everything in relation to the accident took place on that adjoining land.  In those circumstances there could be no duty on the part of the occupier. 

28.      There is force in the submissions of both parties.  We accept that to find in favour of the plaintiff's submissions may lead to some illogicalities vis-à-vis the position of the liability of an adjoining owner where there is a public right of way. However, we have concluded that, depending upon the circumstances, an occupier may owe a duty of care towards a person who is leaving his property in respect of a hazard on an immediately adjoining property.  We can well understand the argument that, in relation to an action for breach of statutory duty under the 1957 Act, it may be that this is not so and that any duty is confined to the occupied land.  The wording of the statute might be thought to point in this direction.  But there would seem to be no reason for English law not to allow for a broadly concurrent common law duty of care if the requirements for such a duty are satisfied.  This appears to have been what was decided in Dodkins and to have been envisaged in McCluskey (where there was a claim under the Scottish equivalent of the 1957 Act and at Scottish common law).

29.      We do not suffer from any such difficulties in this jurisdiction.  The 1957 Act does not apply.  The law as laid down in Morton and Knight is that the ordinary Donoghue v Stevenson principles of negligence apply to the question of whether an occupier owes a duty of care.  There is no special law in relation to occupiers.  The Court must simply consider the three standard tests of foreseeability, proximity and whether it is fair and reasonable to impose such a duty. 

30.      Now, where a visitor is lawfully upon land, the mere relationship between the occupier on the one hand and the invitee or licensee on the other will of itself satisfy the three requirements and suffice to give rise to a duty on the part of the occupier to take reasonable care to avoid a foreseeable risk of injury to the visitor whilst on the land (see the comments of Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 662, quoted with approval by Southwell JA in Morton at page 48).

31.      But, in the case of a person who is no longer on the occupied property but is in the process of leaving it, one must apply the normal three part test in order to decide whether a duty of care is owed.  In our judgment, whether such a duty is owed will depend upon circumstances.  Let us take an extreme example.  Suppose that there had been serious subsidence as a result of which a large hole 10 ft. deep had formed immediately outside the slipway entrance to the Inn, so that it was not possible to emerge from that entrance without falling into the hole.  Let us further suppose that this fact was known to the occupier of the Inn.  Is it really to be said that the occupier owes no duty to a customer leaving the beer garden to take reasonable steps to safeguard that customer from the certain risk of serious injury if he leaves via the slipway entrance?  Is he to be permitted simply to allow the customer to leave the property in the dark in the knowledge that the customer will almost certainly fall in to the hole?  Is there no duty on the occupier simply to close the gate (there being alternative means of exit from the Inn) or to place a warning about the danger or to place a light on his property so that the customer will see the hole in front of him?  Mr. Benest's argument would require us to hold that, even in such circumstances, there was no duty of care on the part of the occupier because the hazard lay outside the boundaries of the property. 

32.      We do not agree.  In our judgment, in such a case, all the requirements for imposing a duty of care would be met.  There would be a clearly foreseeable risk of injury.  There would be the necessary proximity between the occupier and the customer.  The customer would have been a visitor of the occupier until a fraction of a second before he comes across the danger on the slipway.  He would be in the process of leaving the occupier's premises.  Would it be fair and reasonable to impose a duty in such a case?  We are in no doubt that it would be.  The danger would be known to the occupier, the risk of injury would be substantial, the measures necessary to avert the risk would be minimal and easy to achieve and the visitor would have been someone who was encouraged to come to the property in order to benefit the occupier by purchasing food and drink.   In such a case there would be a duty of care and a breach of that duty if reasonable steps to avoid the leaving customer falling into the hole were not taken.

33.      Accordingly, we hold that there is no absolute prohibition, as Mr. Benest submits, on an occupier owing a duty of care towards a visitor leaving his premises in respect of a hazard on adjoining land.  Whether there is such a duty in a particular case, and if so whether there has been a breach of duty, will depend upon the circumstances and the application of the ordinary principles of the law of negligence.  Thus to take an example mentioned by Mr. Benest, the fact that there may be a 10 ft. hole in the road 100 yards away from the exit would not give rise to any duty on the part of the occupier in respect of that hole.  It would not be reasonably foreseeable that a visitor leaving the Inn would fall into the hole in such circumstances nor would there be the requisite proximity.   It would certainly not be fair and reasonable to impose a duty on the occupier of the Inn in respect of a hazard which lay so far away.  We accept that the occasions when it would be right to impose liability on an occupier in respect of a hazard on adjoining land may be rare, but we are of the view that, applying the normal principles of the law of negligence, such liability may exist in some cases. 

Application to the facts

34.      It is in applying the law to the facts of this case that the plaintiff runs into difficulties.  In our judgment, it was not incumbent upon the defendant in this particular case to light the slipway near the entrance so as to show the existence of the drop from the kerb to the cobbled stone on the slipway or to warn customers of the existence of the drop or to close the gate to prevent its use at night. We summarise our reasons as follows:-

(i)        There is no general duty on a public authority to light a public road.  Thus many roads are in darkness.  A person using such a road is expected to move forward carefully or provide his own light.  Such roads often have a pavement and there is usually a drop of several inches from the pavement to the road with a pavement.  Such a drop is a natural and expected characteristic of a road.  Accordingly, although injury may be caused to a person who trips over or falls off the edge of a pavement, there is no duty on the public authority to warn a person of the existence of such a drop or to illuminate it. 

(ii)       A fortiori there is no duty upon the owner of a property which adjoins an unlit road with a pavement to illuminate it or to warn a visitor of the existence of the pavement and the drop from the pavement to the road.  A visitor to a property adjoining such a road takes the road as he finds it.  If he is emerging from such a property on to the road at night it is incumbent upon him to do so cautiously or to provide his own light, such as a torch. 

(iii)      Le Dicq slipway is a standard slipway of a type and structure to be found all over Jersey as stated by Mr. Mezec.  There is nothing unusual about it.  The existence of the granite kerb and the drop down to the cobbled stone is perfectly standard and is to be expected.  The existence of such a drop is not an unusual or unexpected hazard.  Just like a pavement on a road, it is something that can reasonably be expected to be found on a slipway in Jersey. 

(iv)      We accept the evidence of Mr Mezec that slipways in Jersey are generally unlit.  Just as there is no duty on a highway authority to provide street lighting on a road, so there is no duty to provide lighting on a slipway.  It is therefore not unusual and to be expected that, if one steps on to a slipway at night, it will be in darkness.

(v)       We accept, of course, that there have been many cases where plaintiffs have succeeded in establishing liability where they have tripped over protruding pavement slabs or dips in the pavement caused by subsidence etc.  But in all these cases, the situation was unexpected.  Thus in general pavement slabs are expected to be tolerably flat and a substantially raised slab or hole is not the normal and expected state of affairs.  But the raised kerb on the slipway in this case was absolutely standard and was to be expected.  There was no defect and a pedestrian ought not to be taken by surprise by the existence of such a kerb any more than by the existence of a kerb on a pavement.   Sedley LJ made it clear in Buyukardicli v Hammersmith UK Properties Plc (2002) EWCA Civ 683, (when holding that a two inch lip which stood proud of some soil, all of which was unexpectedly situated in the approach to a John Lewis store in the Brent Cross Shopping precinct was a hazard) drew a distinction with the position of the normal and expected drop at the edge of a pavement when he said:-

"It is nothing to the point to remind the court that the kerb between the tarmac and the pavement was not a hazard.  It was twice as high as the lip, but it was where one expects a kerb to be.  The lip was in a most curious place ........"

In other words it is the unexpected drop or lip against which an occupier may have to guard.

(vi)      We also acknowledge that in many cases a failure to light property will render the occupier liable to a visitor who is injured as a result.  Miss Gilbert referred us to a number of such cases, e.g. to name but one, Campbell v Shelbourne Hotel Limited (1939) 2KB 534 where the defendants ran a hotel and it was held to be a breach of their duty of care to fail to light a corridor in the hotel at 11.20 p.m. when guests of the hotel might reasonably be expected to be using the corridor.  The question of lighting is very dependent upon the facts.  Thus there is no suggestion that a private house owner is under a general duty to light his garden or his field.  Furthermore, none of the cases refer to the question of whether there is any duty to light adjoining land upon which there is a hazard.

(vii)     The plaintiff knew that she was walking onto a slipway.  She knew the area well, having worked at The Shack further down the slipway on many occasions over a considerable period of time.  Indeed, she had that very evening, only a few minutes earlier, walked up the cobbled stones of the slipway, crossed the kerb and carried on up the steps to the beer garden.  Furthermore, she knew that the slipway was unlit. 

(viii)    If we were to hold that the Inn was under a duty to light the kerb by the entrance, it would be hard to see why any owner of a property adjoining an unlit road with a pavement should not be under a similar duty to light the pavement edge.  Miss Gilbert recognised this difficulty and conceded during her opening that the claim would not have been brought if one had been dealing with a private house adjoining the slipway.  But she submitted that we were here concerned with commercial premises which sought to attract people for commercial gain.  A higher standard was therefore to be applied.  Whilst we accept that, when considering what is reasonable, it is often right to take into account the nature of the activities and the financial resources of the party accused of negligence, we are of the clear opinion that, even for commercial premises, there is no duty to light something which is a natural characteristic of the adjoining land and is to be expected.  An occupier might be under a duty to light an unexpected hazard on adjoining land (such as the large hole caused by subsidence to which we referred earlier) across which he knows his visitor must go when leaving, but he is not, in our judgment, under a duty to protect visitors from a perfectly normal situation which the visitor would expect reasonably to find, i.e. a pavement on a road or a kerb on a slipway.  It was obvious and indeed known to the plaintiff that she was emerging on to a slipway; that the slipway was unlit and therefore dark; and that the slipway had a kerb.  It was not incumbent upon the defendant, as an adjoining occupier, to warn the plaintiff of this entirely expected situation nor to illuminate the scene, nor to prevent her from using the gateway on to the slipway.  

(ix)      Although we have held that such a concern is not determinative of the existence of a duty of care in all circumstances, we cannot ignore the somewhat illogical consequences which would flow from a finding in the plaintiff's favour on this occasion.  Thus a person walking up the slipway from the beach or The Shack or going down the slipway towards either of those places and who fell off the kerb in exactly the same way as the plaintiff would clearly have no claim against the defendant as there would be no relationship between the defendant and such a person which could possibly give rise to a duty of care; whereas a person who fell in exactly the same way having just emerged from the Inn would have a claim.  Whilst such a distinction might conceivably be justifiable in the case of an unexpected, unnatural and obviously dangerous hazard which was known to the occupiers of the Inn, there seems no logic in such a distinction where the slipway was in its ordinary natural and expected state. 

35.      In summary, for the reasons we have given above, and bearing particularly in mind that this was a situation entirely to be expected upon a slipway and that it was obvious to a person emerging from the beer garden that he was emerging on to a slipway which was unlit, we find that the kerb on the slipway did not give rise to such a risk of injury as to impose on the defendant a duty to light the slipway in the immediate vicinity or to give warning of the existence of the kerb or to prevent customers using the entrance to the slipway.  We find therefore that the defendant has not been in breach of its duty of care towards the plaintiff; it has not been negligent.

Contributory Negligence

36.      In case we are held to be wrong in deciding that the defendant was not negligent, we propose to consider what, if any, contributory negligence should be found in such an event.  To do so it is necessary to rehearse a little more of the evidence. 

37.      In her evidence, the plaintiff said that she followed James down the steps as she accompanied him back to The Shack.  She was walking at normal speed, and James was just in front of her.    She denied that James was running or that she was running after him.  She said that he was about 2 ft. in front of her at the time she fell.  She never saw the kerb.  She accepted that she knew from her previous visits that the slipway had a kerb but had forgotten about it at the time of the fall. 

38.      In her witness statement, which she confirmed was correct in her evidence in chief, Miss Yangniyom said that, as the plaintiff and James left the beer garden to go back to The Shack, 'James ran slightly ahead of Aranya, ran down the few steps, through the archway and on to the slipway.  Aranya followed him.'  In cross-examination, she said that the plaintiff ran after James, but on re-examination she changed this to say that the plaintiff was walking after James, not running.

39.      In our judgment, even if the defendant was negligent in not lighting the slipway by the entrance to the Inn or warning the plaintiff about the kerb, the major part of the fault for this accident rests with the plaintiff.  Our reasons, (some of which cover similar ground to our decision on liability) are as follows:-

(i)        The slipway was in exactly the condition to be expected of a slipway.  There was nothing defective or unexpected about it.

(ii)       The plaintiff knew the slipway well, having gone up and down it on numerous occasions when she went to and from The Shack for work and, occasionally, into the Inn.  She knew that the slipway had a raised kerb. 

(iii)      She knew that the slipway was unlit and it was therefore necessary to proceed at a cautious speed when walking upon it in the dark. 

(iv)      She had walked up the slipway, across the kerb and up the steps into the beer garden only a few minutes before the accident. 

(v)       James was a five year old.  They are prone to run rather than walk wherever possible.  We think it probable that James scampered down the steps of the beer garden and on to the slipway. 

(vi)      We think it probable that the plaintiff had to walk at a fairly brisk pace in order to keep up with him.  She was concentrating on following James and not letting him out of her sight.  She said she was only some 2 ft. or so behind him when she fell.  No-one has suggested that James also fell and we take it that he negotiated the drop from the kerb to the cobbled stone safely.  We find that the plaintiff was probably concentrating more on following James than on where she was going and on the fact that it was dark on the slipway. 

(vii)     As she admitted in evidence, she forgot about the existence of the kerb although she was familiar with it. 

40.      Allocation of contributory negligence is ultimately a discretionary exercise of judgment.  We consider that by far the greater fault for this fall lay with the plaintiff.  Even if the defendant is held to be negligent, we hold that a finding of 75% contributory negligence would be appropriate.

41.      Miss Gilbert referred to us to a number of cases on contributory negligence but each case turns upon its own facts.  Nevertheless, we would mention two of them.  In Buyukardicli (supra) the Court of Appeal upheld a finding of 75% contributory negligence where the plaintiff tripped over a lip which stood about 2 inches proud of some soil, all of which was unexpectedly situated in the approach to a John Lewis store in the Brent Cross shopping area.  In Peskett v Portsmouth City Council (2002) EWCA Civ 1175 the Court of Appeal, whilst indicating that they themselves might have fixed upon a higher percentage of contributory negligence, upheld a figure of 50% where the plaintiff tripped over the edge of a paving slab on a path where the adjoining earth and grass had been eroded to a level lower than the edge of the slab.  We emphasise that each case turns upon its own facts and in no sense are these or any other cases to be regarded as precedents.  We have simply used them as a check in order to ensure that our finding of 75% contributory negligence is not inconsistent with the bracket of findings which have been made in other tripping cases

Conclusion

42.      However, for the reasons we have given, we find that the defendant was not negligent in this case, in that it was not in breach of any duty of care and we therefore dismiss the claim.

Authorities

Occupier's Liability Act 1957.

Knight -v- Thackeray's Ltd [1997]JLR279.

Morton -v- Paint (1996) 21 Guernsey Law Journal 36

Donoghue -v- Stevenson [1932] AC 562.

Australia Safeway Stores (Pty) Ltd -v- Zaluzna (1987) 162 CLR 479.

Ridden -v- A.C. Billings & Sons, Ltd (1956) 3 All ER 357.

Dodkins -v- West Ham United plc (2000) Currant Law: para 4226 (Note).

McCluskey -v- Lord Advocate (1994) SLT (Notes) 452.

McGeown -v- Northern Ireland Housing Executive (1994) 3 WLR 187.

Perkowski -v- City of Wellington Corporation (1959) AC53.

Hackshaw -v- Shaw (1984) 155 CLR 614 at 662.

Buyukardicli -v- Hammersmith UK Properties plc (2002) EWCA Civ 683.

Campbell -v- Shelbourne Hotel, Ltd (1939) 2KB 534.

Peskett -v- Portsmouth City Council [2002] EWCA Civ 1175.