Harris v Birkenhead Corpn (Pascoe Third Party: Alliance Assurance Co Ltd Fourth Party)

An occupier for liability purposes need not have physical possession. A person who has asserted an immediate legal right to enter and control premises may qualify, particularly once no other person physically occupies them. The duty to child trespassers remains limited. Where the occupier knows, or ought to recognise from obvious primary facts, that a child may enter a place of grave danger which the child may not appreciate, reasonable practicable steps may be required to exclude, warn or reduce the danger. Causation is established where such precautions would probably have prevented the injury.

A four-and-a-half-year-old child entered a derelict house in a compulsory purchase area and fell from a second-floor window. The High Court, Mr Justice Kilner Brown, gave judgment for the child against Birkenhead Corporation for £20,000, while giving judgment for the owner, Mrs Gledhill, against the child and directing that her costs be paid by the Corporation. The Corporation appealed. The child brought a conditional cross-appeal against Mrs Gledhill if the Corporation’s appeal succeeded. The central issues were whether the Corporation was an occupier despite not having physically entered the house, and whether it owed a duty to the trespassing child.

Lord Justice Megaw delivered the leading judgment. Lord Justices Lawton and Ormrod agreed.

1. The Corporation was an occupier for the relevant purposes. More than one person may be an occupier at the same time. The Corporation had served a notice asserting an immediate right to enter and take possession under section 11(1) of the Compulsory Purchase Act 1965. Once the tenant had left and the property was physically unoccupied, that asserted right of control was sufficient, on these facts, even without actual, symbolic or deemed possession. The authorities, including Wheat v E. Lacon & Co. Ltd. ([1966] AC 552), showed that physical possession is not an essential ingredient of occupier status.
2. The notice referred to paragraph 9 of Part 2 of the Third Schedule to the Housing Act 1957, but that provision had been repealed by section 39(4) and Schedule 8 to the Compulsory Purchase Act 1965, with commencement under section 40. The misdescription did not matter because section 11(1) supplied the relevant statutory authority.
3. The limited duty to child trespassers identified in Herrington v British Railways Board ([1972] AC 877) applied. The entrance was near a public street; a child could easily enter; the house presented a grave risk of death or serious injury; and a child might not appreciate the danger. The duty did not require the land to be made fit for trespassers or require general surveys for unknown dangers. It required reasonable practicable steps which common sense or common humanity indicated, such as securing the premises.
4. The Corporation knew, or ought to have known, that the house was vacant and derelict in sufficient time to act. Lawton LJ explained that actual knowledge need not mean positive knowledge: a person cannot avoid knowledge by shutting their eyes to obvious facts or by failing to draw reasonable inferences from primary facts.
5. The failure to secure the house was causative. There was no practical difficulty in taking precautions, and they would in all human probability have prevented the accident. The Corporation’s appeal and the cross-appeals were dismissed, with costs payable by the First Defendants. Legal Aid taxation of the plaintiff’s costs was ordered, and leave to appeal to the House of Lords was refused.

• Court of Appeal: dismissed the Corporation’s appeal and the child’s cross-appeal, with the stated costs and taxation orders.
• High Court, Mr Justice Kilner Brown: gave judgment for the child against Birkenhead Corporation for £20,000 and judgment for Mrs Gledhill against the child, directing that Mrs Gledhill’s costs be paid by the Corporation. The decision is reported at [1975] 1 WLR 379.