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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Beech v Speare [2001] EWCA Civ 1164 (15 June 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1164.html Cite as: [2001] EWCA Civ 1164

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
(MR RECORDER STOREY QC)

		Royal Courts of Justice Strand London WC2 Friday, 15th June 2001

Friday, 15th June 2001

1. LORD JUSTICE SCHIEMANN: Lord Justice Kay will give the first judgment.
2. LORD JUSTICE KAY: On 8th July 1995 the claimant, Susan Beech, was injured when she tripped and fell over a chain link fence located round the perimeter of the Devonshire Road Evangelical Church in Broadheath, Manchester. She brought this action against the Trustees of the church to recover damages for personal injures which she suffered as a result. An order was made for the issue of liability to be tried as a preliminary issue.
3. On 5th September 2000 Mr Recorder Storey, QC, sitting in the Manchester County Court gave judgment to the claimant for damages to be assessed. The defendant now appeals with permission against that finding of liability.
4. There was little dispute as to the facts giving rise to the claim. The claimant, at about 10.00 or 10.30am on a bright and sunny weekday, took her two children, one aged five and the other a little older, to the church in order that they could go on a church outing to Colwyn Bay. She parked on the car park leaving her disabled mother in the car and took the children to board the coach which was parked in the road. Once the children were on the coach she went back towards the car. From the car park she noticed that her five year-old boy was becoming over excited and throwing his arms about in a way which might cause him to strike someone. She decided to knock on the window and tell him to sit down. As she moved from the car park on to the pavement her way was barred by the chain linked fence that marked the perimeter of the car park. She did not notice the fence and tripped over it suffering a dislocation of her left elbow and a fracture of her right leg. Unfortunately those injuries have had long-term consequences for her.
5. The dimensions of the chain link fence were not in dispute. It consisted of a number of 3 inch posts, each 22 inches high. They were set approximately 5 feet apart. The linking chains were affixed near to the top of the post and looped down so that the lowest points of the chain were between 9½ and 11½ inches above the ground. The posts were painted black. The chains which were not particularly substantial chains do not seem to have been painted and consequently they had rusted. The surrounding area both within the car park and on the pavement was tarmac.
6. The claimant's case was that the fence presented a danger to users of the car park in an area where people could reasonably be expected to congregate. A number of distinct points were made. It was submitted that the posts were too low, the chains hung down to a height that made it both difficult to see them and also likely to trip someone up who failed to notice them. The colouring of the posts and the chain made them inconspicuous. The defendants contended that the fence was not dangerous, it was of a type frequently to be found boarding a plot of land or areas within a plot. In any event the claimant herself had been a regular weekly visitor to the church for a period of over four years and must indeed, as she conceded in evidence, have known of the existence of the fence. Accordingly, it was submitted negligence was not made out, and it was alleged that the accident resulted from the claimant's own failure to have regard to her own safety. As an alternative to the denial of liability contributory negligence was pleaded.
7. A reading of the evidence in the case makes it quite clear that from a very early stage the defendant's arguments did not impress the recorder. His interventions demonstrated that he had a clear view on the dangerousness of the fence. To an extent this is understandable because he would have seen the photographs and there was little factual dispute. Nonetheless it would have been better if he had allowed the evidence to develop without one-sided interventions before he reached his firm conclusion.
8. The recorder's conclusions were expressed (one might anticipate from what I have just said) in emphatic terms. At page 2H of his judgment he said:

"I, of course, have not seen the actual chains because they are no longer present, but it does seem to me from the photographs that, although the posts which are about 22 inches high may be reasonably conspicuous, the chains themselves relatively speaking are not conspicuous at all. It seems to me that if an occupier of premises, where people are likely to walk from the public pavement on to the car park of the premises, erect a low hazard at the very sort of height which their own expert agrees is likely to trip people up then the very least duty that they owe is to make the potential tripping hazard conspicuous in itself, and to give clear warnings of the nature of that hazard. These chains were rusty, the posts are painted black. I, for my part, whether a man in the street or not, do not find anything ludicrous in the suggestion that overall this was a low tripping hazard which was inconspicuous. I think that this is the very sort of hazard that when people are going about their lawful occasions, conducting their business at eye level as they usually do, they are likely to fall over unless some active steps are taken to prevent them from doing so."

9. The recorder then went on to deal with a point made in the course of evidence about building regulations and the minimum height normally to be expected from barriers of that kind. Translating their metric dimensions, the recorder said:

"Broadly speaking somewhere between three feet and three feet six inches high, or even more broadly speaking at about waist level."

10. He concluded that there was good reason for such regulations.
11. He then went on and said:

"I can only describe the situation in this car park in one way in my view, it is that these posts and chains were an accident waiting to happen, and sooner or later someone was bound to trip over these chains. That someone, unfortunately, was Mrs Beech. I have reached the conclusion that if anybody had given proper thought to the safety considerations associated with erecting 22 inch high posts and a thin chain between them drooping down to less than a foot above ground level, they would have reached the conclusion, if they had given proper thought to the matter, that sooner other later the potential for a trip would be translated into an actual trip."

12. Accordingly he found that there was liability on the part of the defendant.
13. He then went on to consider the question of contributory negligence and said:

"The other question which is to be decided is whether Mr Beech herself bears any part of the blame. The argument which is advanced is, "Well she didn't look down. She didn't see the chain and therefore she is to blame." That might be so if she were in a position where there were some clear and obvious hazard against which she should guard, and therefore she should be under a duty to do something over and above that which one would normally do when walking about a car park or a pavement, but here, as I have pointed out, the hazard was far from clear and obvious. Even though she knew about the chains, it was the very sort of hazard which, in the situation which arose where she was concentrating on something that was happening at or above eye level, she might forget about the chain and move forward and fail to see the tripping point which had been erected and fallen over it.

In my view it lies ill in the mouth of someone who quite deliberately erects a tripping hazard which has the potential to cause a serious accident then to say that others should have taken the special extra care necessary to avoid the very hazard that had been erected, and as a result I can see nothing that Mrs Beech did in the situation which was beyond or below, in terms of duty, that which would normally have been done by any person using this car park. I do not find that she was careless in any way and I do not believe that she is to be categorised as bearing any part of the blame for this accident."

14. He therefore rejected the allegation of contributory negligence.
15. Mr Harrison, on behalf of the defendant, contends that the photographs clearly show what this fence was like and that this court can form just as clear a view as the recorder as to what the situation was that confronted this lady. It was not obstructed in any way. It was at a place where one might reasonably anticipate some boundary fence. Accordingly whilst a low wall or a low fence is something over which a person can trip, in all the circumstances of this case it is submitted that this did not represent a failure to take reasonable care. He submitted that an ordinary person seeing the fence would not think that there was anything objectionable about it and would be astonished at the suggestion that its presence in that location gave rise to liability. Mr Harrison argues that if in fact it was reasonable to take steps other than those that had been taken and place a different fence, then it can reasonably be expected that pedestrians would guard against the small risk involved simply by stepping over it, that it could be seen, and that one could not reasonably anticipate an accident happening of this kind.
16. On behalf the claimant, Mr Rigby contends that the judge was in the best position to evaluate the danger. Not only had he seen the fence, but he had heard the witnesses. He was entitled to rely on the evidence from the defendant's expert and to conclude as he did that this was an accident waiting to happen. He argues that a fence of this kind, particularly bearing in mind how low the chain came above the ground, was exactly the sort of hazard that somebody going about the sort of business that might be expected of a visitor to this car park might not notice in the heat of the moment and might accordingly trip and fall and suffer serious injury. In those circumstances he submits that the court ought not to interfere with the conclusions of the recorder that this was a hazard that could have been avoided. The fence, he submits, served no real purpose there and the chains could easily have been taken away removing such hazard as there was with no inconvenience or problem so far as the defendant was concerned. He goes on to submit that if indeed the court concludes that there was some degree of blame on the part of the claimant in not looking where she was going that really was a very small contribution to the happening of the accident, it could not be characterised as more than a moment's inattention, therefore there should be no finding of contributory negligence, or, it follows, if there was a finding, it ought to be a relatively low finding.
17. For my part I consider that I have had as good an opportunity as the trial judge to see the precise layout of this car park with the fence in position. I think that Mr Harrison is right to say that the location of the fence itself is of significance. It is not at an unexpected point. It is exactly where one might reasonably expect on any car park to find a boundary fencing to the car park.
18. The claimant was used to this car park. She herself acknowledged that she must have been aware that there was a fence, although in the moment when she moved forward to try and speak to her child she forgot about it. She was aware that there were, in effect, two separate entrances to the car park, one for vehicular traffic into which she had driven and another one which she used on occasions herself as a pedestrian entrance to the car park. She would stop in the road, help her disabled mother into a chair and then push her into the church. So there was nothing in any way which one could have reasonably expected would have taken her by surprise, nor in my judgment do I think that the fact there was a fence would be likely to take any visitor, however infrequently they had been to these premises, by surprise.
19. The next question, and the significant question in my judgment, is whether this was in some way so inconspicuous that anybody looking at it would appreciate that there was danger in leaving it in that state. Having seen the photographs, although the fence posts may be lower than those often found in fencing of this kind and although the chain was rusty, I do not think that the nature of this fence was so out of the ordinary that one could characterise having it in place in that position as being one that departed from the standard of reasonable care to be expected of the occupier of the car park. I cannot believe, for example, that if I walked down the road and saw that fence and addressed my mind to it it would ever have occurred to me to say that that was such a danger that it really ought to be removed at once. Any low fence has the possibility that somebody may trip over it; if it is in an unexpected place that may in itself be a reason why there needed to be some clearer warning or clearer precautions taken. But when, as here, it was in the anticipated place it does not seem to me that one could characterise its being there as such a danger that a reasonable occupier ought to have done something about it.
20. For those reasons I have come to the conclusion that the real cause of this accident was indeed the failure of the claimant herself to notice a fence that she was aware of in normal circumstances and which, if she had been paying any attention at all, she would have seen at the time of her accident. It is always unfortunate when an accident of this kind occurs, and one is loath to be too critical of someone who suffered serious injury as a result of the sort of momentary inattention of which we are all responsible from time to time. But I am afraid at the end of the day that was the cause of this accident. I do not think it is possible to say that this fence was simply so dangerous that it ought not to have been there. Accordingly, in my judgment, the conclusion reached by the recorder was not one that he could properly have reached on the facts of this case.
21. For those reasons I would allow this appeal and substitute for the finding that there was liability a judgment for the defendant.
22. LORD JUSTICE SCHIEMANN:I agree with the judgment which has been delivered.
(Appeal allowed; order by the recorder will be set aside; there will be judgment for the defendant; community legal services assessment).