United Kingdom Supreme Court

The statutory provisions

“(b) where danger arises from overloading of the building or structure, make an order restricting its use until a magistrates’ court, being satisfied that any necessary works have been executed, withdraws or modifies the restriction.”

By section 77(2)(b) if the person against whom an order is made under subsection (1)(a) above fails to comply with the order within the time specified, the local authority may execute the order and -

“(b) recover the expenses reasonably incurred by them in doing so from the person in default.”

“(1) A local authority shall make full compensation to a person who has sustained damage by reason of the exercise by the authority, in relation to a matter as to which he has not himself been in default, of any of their powers under this Act.” (emphasis added)

By section 106(2) any dispute arising “as to the fact of damage, or as to the amount of compensation” is to be determined by arbitration.

“(7)     Where in consequence of the exercise of the powers conferred by this section the owner or occupier of any premises sustains damage, but section 106(1) below does not apply because the owner or occupier has been in default -

(a)       the owner or occupier may apply to a magistrates’ court to determine whether the local authority were justified in exercising their powers under this section so as to occasion the damage sustained, and

(b)       if the court determines that the local authority were not so justified, the owner or occupier is entitled to compensation, and section 106(2) and (3) below applies in relation to any dispute as regards compensation arising under this subsection.”

“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.”

The latter, by section 2, imposes on an employer the duty to “ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees”, and in particular to maintain any place of work (including means of access and egress) in a condition that is safe and without risks to their health.

The facts

“The original Hastings Pier was opened in 1872. It was built to a length of 277m with its timber deck bearing on wrought iron lattice trusses, all supported on three rows of cast-iron screw piles via cast-iron columns; the columns were braced with wrought iron ties secured with cast-iron clamps. The width varied from 13.6m at the Central Section to 60m at Head and 39.6m at the landward end. Repairs utilising steel trusses and steel columns have been undertaken at various times since following a fire in 1917 to the Pier Head, partial demolition (sectioning) and actual bomb damage during the 1939-45 war, and widening to both sides of the Pier …”

They commented on the general state of the pier:

“Experience has shown the typical life of Victorian piers to be approximately 100 years; during this time continual maintenance would have been required, including the replacement [of] some critical elements. After this time, major reconstruction works would be required if continued use of the pier were to be viable. The general condition of Hastings Pier fits this pattern.”

“With regard to the remaining work it is understood that this cannot be undertaken immediately. However this work should be completed within one year, with regular monitoring of the defective areas until this can be achieved. Unless this is carried out we judge there to be an unacceptable risk to the public.”

There is no evidence of action by Ravenclaw or the council to remedy the structural defects in response to this report, other than some limited work by Ravenclaw in the winter of 2005-2006. Meanwhile the public continued to use the pier, and the pier facilities (including the bingo hall and the amusement arcade) remained open for business.

“a)       Access resulting in the potential for crowd loading on the Central Section and beyond should be prohibited until either, as a minimum, the presently identified defects in the area of the Central Section bounded by Columns 197-216-211-200 have been rectified or alternative safe access routes have been provided.

b)        Access by shop tenants or others for the purpose of maintenance need not be restricted.” (para 6.1)

The columns there identified were beneath the Stylus premises.

“In recent days the council has become aware that major events were still being booked for the Pier ballroom; two of these have been booked for July and one in August. As a result of its concerns over the Pier structure the Council commissioned consulting engineers Gifford of Southampton to look at a specific area of concern under the main covered walkway around the main facade entrance.

This inspection was carried out yesterday. It has been established that at least five trusses have ‘failed’ in this area. Our consultant is of the opinion that it is unsafe to allow large numbers of people onto the Pier.

This area provides the only method of access onto and off the Pier. Any emergency affecting the rest of Pier, including the ballroom, requiring evacuation would mean crowds of people walking over the area where we have been specifically advised that crowds are unsafe.

As a result the council has had no option other than to use its emergency powers to close much of the Pier immediately.”

The letter noted that, despite previous attempts to resolve the situation, the “Pier management” were continuing to plan for large events.

“That the Council is not liable under section 106 of the 1984 Act because the claimant was ‘in default’ for the purposes of that section because of the breach of section 2 of the Occupiers Liability Act 1957 and/or because it took a lease of the Pier past the end of its design life from a company registered outside the jurisdiction and was aware by the very latest in 2004 that there were serious problems with the structure of the Pier but took no adequate steps to ensure the Pier was repaired or the public excluded.” (para 14)

He noted that in submissions the council had relied also on the duties under the Health and Safety at Work etc Act 1974. He rejected the defence, holding that the reference to “default” should be read as default in respect of obligations imposed by the 1984 Act itself. In support he cited authorities under previous statutes using the same expression, in particular Neath Rural District Council v Williams [1951] 1 KB 115. He added:

“If that is not so and if it were necessary to see whether a party was in breach of any provision of other statutes, as is submitted here, then the scope of enquiry would be large and would require investigation of further factual matters to determine whether there was a default in terms of those statutes.” (para 46)

He also rejected a separate defence that, absent section 78, Stylus would have had no action in tort in any event. That is no longer in issue.

“[Stylus] has acted responsibly at all stages. It did its utmost to compel the landlord to carry out remedial works. Ultimately it stepped into the breach and did the works itself. If the local authority had wished to avoid liability to pay compensation under section 106, it could have brought proceedings under section 77 of the 1984 Act sooner and thereby avoided the need to take emergency action under section 78.

Finally, on this point, [the council’s] general arguments will still be available at the quantum hearing before the arbitrator. The local authority will be entitled to argue that even if it had not fenced off the pier, [Stylus] could have made little use of its two units.” (paras 81-82)

“… the motivation for the local authority’s closure of the pier to the public on 16 June 2006 was the likelihood of large crowds accessing the pier on and after 17 June for reasons unconnected with [Stylus’] business.

As at 16 June 2006 [Stylus] had not incurred liability to any member of the public for breach of the Occupiers’ Liability Act 1957. Nor can I see any basis for saying that [Stylus] had committed any breach of the statutory duties which it owed to its employees under the Health and Safety at Work etc Act 1974 ...” (paras 91-92)

In his view, the default proviso was the “control mechanism which eliminates claims that are unacceptable on grounds of public policy”. It left no room for the application of the ex turpi causa rule (para 94). He added:

“95.     Having said that, I do accept that the structural condition of the pier will be relevant to the quantum of the claim. The local authority will be entitled to argue in the arbitration due to be held under section 106(2) that the loss of profit caused by the local authority’s conduct must be substantially reduced by reason of the structural condition of the pier. Indeed the local authority would be entitled to argue that the quantum is reduced to nil, although on the evidence which I have seen that outcome seems unlikely.”

The submissions in summary

“in relation to the very matter in relation to which the statutory power was exercised, namely the admission of the public to premises which when they were admitted were dangerous (to them and employees)” (printed case p 30)

i)                   It had received the September 2004 HDL report showing that urgent repairs were necessary “to protect the public”, including work in the Stylus area of the pier, which if not carried out within at most a year from September 2004 would mean there would be “an unacceptable risk to the public”;

ii)                No further report had been obtained giving a different assessment on the state of the Pier in this area two years on;

iii)              Notwithstanding the contents of the report the necessary work was not done prior to closure.

Although the primary responsibility for repair lay with the freeholders, Stylus had the ability to carry them out in default (Granada Theatres Ltd v Freehold Investment (Leytonstone) Ltd [1959] 1 Ch 592, 608), as indeed it did following the court order. By continuing to invite the public to its premises it was causing loading by the public resulting in them and its employees being made subject (in the words of the HDL report) to “unacceptable risk”.

Discussion

i)                   What was the “matter” in relation to which the authority has exercised its powers?

ii)                Is that a matter “as to which” the claimant has been in default?

“In my opinion the act, default, or sufferance referred to in section 94 of the Public Health Act 1875, is an act, default, or sufferance related to the nuisance which it is sought to abate, and default no less than sufferance within the meaning of that section can occur without the breach of an obligation arising from contractual agreement.” (p 425)

“… in the case of a natural stream a landowner had no duty at common law to keep the bed clear by removing obstructions which might arise from natural causes, and the proviso to (section 259(1)) was designed to prevent any additional duty from being cast on the landowner …”

Lord Goddard CJ expressed some doubt about the actual decision in Clayton but felt able to distinguish it on the basis that it was concerned with the words “act, default or sufferance” whereas the proviso to section 259(1)(b) referred only to “act or default” (p 126). However, he did not doubt the proposition that default could arise from breach of a duty outside the Act itself.

“I do not think that in this case ‘default’ could mean merely doing nothing, unless an obligation to do something were imposed by the Act. There was no act of the defendants which caused the obstruction either to arise or to continue … In the present case, on the facts found by the justices, there is nothing to show that the defendants did anything which caused this obstruction to arise or to continue; nor do I think that there is anything which can properly be called a default on their part …” (pp 126-127, emphasis added).

This passage cannot be taken as implying that only a duty under the 1936 Act itself was thought relevant. It must be read in the context of the judgment as a whole, in which the possibility of a common law duty had previously been discussed and dismissed (pp 120, 123).

“The provision does not require the court or the arbitrator to conduct a wide-ranging review of other legislation and the common law in order to see whether the claimant is in breach of any duties arising outside the 1984 Act.” (emphasis added)

I do not fully understand the inclusion in that passage of a reference to the arbitrator, as well as the court. In so far as it implies a limitation on the scope of the arbitrator’s function it is inconsistent with the later paragraph to which I have referred, and which in my view expresses the correct position.