Morris v Mayor, Aldermen and Burgesses of The Borough of Luton

 

Morris v Mayor, Aldermen and Burgesses of The Borough of Luton

LOCAL GOVERNMENT: TORTS; Negligence, Statutory Duty

COURT OF APPEAL

LORD GREENE MR, MACKINNON AND TUCKER LJJ

14 NOVEMBER 1945

Highways – Obstruction – Air-raid shelter erected in roadway by local authority – Lighting – Shelter not illuminated – Corners of shelter painted with white

paint – Cyclist injured by colliding with shelter – Duty of local authority to give appropriate warning of danger.

Negligence – Contributory negligence – Highways – Cyclist colliding with air-raid shelter during black-out – Principle in Baker v Longhurst not generally applicable – Special circumstances of each case proper test.

On 13 December 1941, during the hours of black-out, the appellant was riding his bicycle when he collided with an unlighted air-raid shelter which had been erected, and was maintained, by the respondent corporation. As a result of the accident, the appellant suffered severe injuries. The shelter had never at any time been lighted, but in Sept 1940, before it was completed, the respondents had received a circular letter from the Ministry of Home Security dealing with the questions of light and containing suggestions on the subject. A scheme had been worked out by the respondents’ engineer, but it was disapproved by the Ministry on the ground of expense. Up to the date of the accident, nothing further had been done about lighting, but the corners of the shelter had been painted with white paint. The action was dismissed in the court below, on the ground that the respondent corporation was under no duty to light the shelter. On appeal, it was contended on behalf of the respondent corporation (i) that the accident was either due to the fact that the appellant was driving at a speed at which he could not pull up within the limits of his vision, or that he failed to keep a proper look-out; in either case he was guilty of negligence and was, therefore, not entitled to recover; (ii) that the case was distinguishable from Fisher v Ruislip-Northwood Urban District Council and County Council of Middlesex in that the respondent corporation had not omitted to do something which they reasonably ought to have done to make the shelter safe and not a source of danger to lawful users of the highway:—

Held – (i) The proposition laid down in Baker v Longhurst (E) & Sons Ltd that a person driving in the dark, if unable to stop within the limits of his vision, was guilty of negligence, was not a general rule, to be observed by all users of the road, and no principle could be extracted from it affecting other cases where the circumstances were different. The proper test, now adopted by the court as guiding all future occasions, was that such cases had to be determined on their own particular facts.

(ii) on the facts here, the respondent corporation had not discharged the onus of proving contributory negligence on the part of the appellant. 

Baker v Longhurst (E) & Sons Ltd not followed.

Tidy v Battman applied.

(iii) the respondent corporation were under a duty to take reasonable steps to prevent the shelter becoming a danger to users of the highway, and their failure to take any such steps made them liable to the appellant.

Fisher v Ruislip-Northwood Urban District Council and County Council of Middlesex followed.

Notes

The proposition that a person driving in the dark must be able to pull up within the limits of his vision was first adumbrated by Rowlatt J, in Page v Richards & Draper ((1920), cited in 149 LT at p 263). In Evans v Downer & Co ((1933), 149 LT, 264n) Scrutton LJ, referred to the principle as having been laid down in several unreported Court of Appeal decisions, and he based it upon a dictum of Lord Bramwell, who said, “If you cannot see where you are going, you must not go.” Then in Baker v Longhurst Scrutton LJ, laid down the principle in express terms as follows: “Either [the plaintiff] was going at a pace at which he could not stop within the limits of his vision, or if he could stop within the limits of his vision, he was not looking out. In either event he was guilty of negligence.” The authority of this decision was much reduced by the observations of Lord Wright in Tidy v Battman, that no case is exactly like another an no general principle of this nature should be extracted from these “limits of vision” cases, and Greene MR, now expresses himself strongly in the case here reported, holding that no such general principle of law exists.

As to Lighting Obstructions in Highway, see Halsbury, Hailsham Edn, Vol 16, pp 323, 324, para 436; and for Cases, see Digest, Vol 26, pp 392–394,

Nos 1187–1207.

As to Negligent Driving, see Halsbury, Hailsham Edn, Vol 23, pp 639, 640, para 899; and for Cases, see Digest, Supp, Negligence, Nos 389a–389e.

Cases referred to in judgments

Baker v Longhurst (E) & Sons Ltd [1933] 2 KB 461, Digest Supp, 102 LJKB 573, 149 LT 264.

Tidy v Battman [1934] 1 KB 319, Digest Supp, 103 LJKB 158, 150 LT 90.

Tart v Chitty (G W) & Co Ltd [1933] 2 KB 453, Digest Supp, 102 LJKB 568, 149 LT 261.

Fisher v Ruislip-Northwood Urban District Council and County Council of Middlesex [1945] 2 All ER 458, [1945] KB 584, 173 LT 261.

Appeal

Appeal by the plaintiff from a decision of Cassels J, dated 8 November 1944. The following facts were found by the judge: On 13 December 1941, during the hours of black-out, the plaintiff was riding his bicycle along Talbot Road, Luton, when he came into collision with an unlighted air-raid shelter which had been erected by the defendants on the carriageway, parallel with the footway but wholly on the carriageway, 6ins from the curb and extending upon the carriageway a distance of 7ft 3ins, which included the 6ins from the curb, and the shelter occupied that amount of the total width of the road, which was 22ft. The plaintiff was seriously injured and has been left with a permanent partial disability. He was an engineer by occupation and was earning about £7 a week. The special damage was agreed between the parties as £175.

The defendants had erected the air-raid shelter in Sept 1940. It never was lighted in any shape or form. The matter of lighting was under consideration by the defendants, because in the month before the shelter was completed the defendants had received a circular letter from the Ministry of Home Security dealing with the question of lights and containing suggestions on the subject. The borough deputy surveyor and engineer worked out a scheme for the lighting of all shelters in the borough, providing for corner lights on each corner of the shelters. The scheme was disapproved by the regional technical adviser of the Ministry on the ground of the excessive expense. There was at the time an arrangement which the local authority had with the Ministry that the latter would be paying for the lighting. The difficulty was to find a lamp which would burn for a long time without attention and in 1940 such lamps were not obtainable.

Nothing further was done about lighting but, before the plaintiff met with his accident, vertical lines in white paint had been painted on each corner of the shelter, and horizontal lines around the shelter.

On these facts the judge held that the plaintiff was not guilty of contributory negligence. The judge held further that if the plaintiff were entitled to recover damages he would have been awarded in addition to the special damage the sum of £1,000. Since the evidence was not sufficient, however, to distinguish the case from Fox v Newcastle-Upon-Tyne City Council ([1941] 2 All ER 563) the judge was bound to follow the decision in that case that the defendants were under no obligation to light the shelter.

N R Fox-Andrews KC for the appellant.

S R Edgedale for the respondents.

14 November 1945. The following judgments were delivered.

LORD GREENE MR. In this appeal counsel for the respondents, but forward two arguments, one relating to negligence and the other to contributory negligence. As the latter formed the latest part of his address I will deal with it at once.

The judge found (and there was ample evidence on which he could so find) that the burden of proving contributory negligence had not been discharged. Upon that it seems to me, having seen the evidence, that his conclusion was undoubtedly right. Counsel for the respondents says that it was wrong because it violated a principle which he first described as a principle of law and afterwards, alternatively, suggested was a principle of good driving or something like that. I need scarcely say that I refer to the well known passage in the judgment of Scrutton LJ, in Baker v Longhurst (E) & Sons, Ltd, where, interpreting him literally, he appears to lay down a sort of general proposition ([1933] 2 KB 461, at p 468) that a person riding in the dark must be able to pull up within the limits of his vision. I cannot help thinking that that observation turned out in the result to be a very unfortunate one because the question as has been so often pointed out, is a question of fact. There is sometimes a temptation for judges in dealing with these traffic cases to decide questions of fact in language which appears to lay down some rule which users of the road must observe. That is a habit into which one perhaps sometimes slips unconsciously; I may have done it myself for all I know: but it is much to be deprecated because these are questions of fact dependent on the circumstances of each case. I cannot regard that observation of Scrutton LJ as in any sense affecting other cases where the circumstances are different.

In the hope that this suggested principle may rest peacefully in the grave in future and not be resurrected with the idea that there is still some spark of life in it, I should like to say that I am in agreement with the observation of Lord Wright sitting in this court in Tidy v Battman where he says ([1934] 1 KB 319, at p 322), referring to Tart v Chitty (G W) & Co Ltd and Baker v Longhurst, that they show:

‘… that no one case is exactly like another, and no principle of law can in my opinion be extracted from those cases. It is unfortunate that questions which are questions of fact alone should be confused by importing into them as principles of law a course of reasoning which has no doubt properly been applied in deciding other cases on other sets of facts.’

That was the observation of one member of this court. I now adopt it myself and, if my brethren take the same view upon that, in future there will be the unanimous opinion of three members of this court that that is the law and I hope that that may conduce to the certainty of the law in these matters.

On the question of negligence, the case in my opinion is quite clearly covered by the recent decision of this court in Fisher v Ruislip-Northwood Urban District Council. Counsel for the respondents endeavoured to draw a distinction between that case and this by suggesting that the respondent corporation had not omitted to do something which they reasonably ought to have done to make the shelter safe and not a source of danger to His Majesty’s subjects lawfully using the highway. His attempt to make out that they had not omitted to do something that they reasonably ought to have done, in my opinion, completely breaks down on the facts. Here was a shelter which for 15 months had been left unlighted. The judge has found that they could perfectly well have lit it, but they omitted to do so. Counsel for the respondents says: “Well, we put before the Ministry concerned a scheme of lighting and the Ministry refused to sanction it because it was too expensive,” and it is suggested that the evidence went as far as this, that, owing to the shortage of labour and the impossibility of getting a lamp to burn for 6 or 7 days without attention, the corporation had a good excuse for doing nothing. The judge has not accepted that view, and, in my opinion, it is quite a preposterous view on the facts of this case. The idea that the duties of a local authority in regard to safety on the roads are to be affected by matters of expense (speaking always within reasonable limits) is one which does not appeal to me. The corporation was going to be indemnified by the Ministry against the expense of any reasonable scheme. Even if the Ministry disapproved there was nothing to prevent the corporation carrying it out; and the argument that it would have been put to expense if it had done so is one which, to my mind, is singularly unattractive. In any event, as the judge found, they could have done something effective to light the shelter.

In my opinion, the case, on the facts, cannot be distinguished from the Ruislip case and the appeal must, consequently, be allowed.

MACKINNON and TUCKER LJJ. Agreed.

Appeal allowed with costs; judgment entered for the plaintiff for £1,175.

Solicitors: W H Thompson (for the appellant); William Charles Crocker (for the respondents).

F Guttman Esq Barrister.

[1946] 1 All ER 4