Wombwell v Grimsby Fish Dock Enterprises

Under both common-law negligence and the common duty under the Occupiers' Liability Act 1957, foreseeability of the relevant accident is essential. Where injury results from a deliberate and highly unusual act by a visitor, assisted by another person, the risk may be so remote as to be practically unforeseeable. In that event the occupier need not adopt expensive or seriously restrictive precautions against it. The statutory question whether the visitor was using the premises for a permitted purpose need not be resolved if foreseeability is determinative. The assessment also takes account of the degree of care ordinarily expected of such a visitor.

The appellant suffered serious injury when a pressurised Halon cylinder stored on the respondent's quayside discharged and struck him. The trial judge found that the appellant had deliberately removed the cylinder's safety pin and operated its discharge lever with assistance from another person. The appellant claimed in negligence and under the common duty of care in section 2 of the Occupiers' Liability Act 1957. After a liability-only trial, HHJ Fox QC dismissed the claim, holding that the accident was unforeseeable and appearing also to regard the appellant's conduct as outside the permitted purpose of his presence. The appeal concerned whether the foreseeability finding was open to the judge and whether the statutory purpose issue required determination.

Appeal dismissed unanimously. The Court of Appeal held that the trial judge's finding on foreseeability was sufficient to dispose of both the common-law negligence claim and the claim under section 2(2) of the Occupiers' Liability Act 1957.

1. The trial judge had referred to Jolley v Sutton LBC [2000] UKHL 31 and Tomlinson v Congleton BC [2003] UKHL 47. Laws LJ considered it unnecessary to determine whether the section 2(2) duty was excluded because the appellant was using the premises for an unauthorised purpose. The decisive issue was foreseeability.
2. The findings that the appellant deliberately removed the safety pin and operated the discharge lever, with Mr White's assistance, were open to the judge and were not successfully challenged. The evidence that seafarers might inspect or move items on a quayside did not make this particular event reasonably foreseeable. The judge was entitled to regard the deliberate operation of the cylinder in a horizontal position as a special and unforeseeable act.
3. Chadwick LJ emphasised that section 2(2) must be read with section 2(3). The relevant circumstances include the degree of care ordinarily expected from such a visitor. A responsible seafarer would not act as the appellant did. Preventing the risk would have required compulsory removal of the cylinders or locked storage, involving serious restriction, expense and inconvenience. Given the practical remoteness of the risk, the statutory duty did not require such measures.
4. Waller LJ agreed that foreseeability was determinative and expressed no concluded view on the permitted-purpose issue. The expert criticism of the respondent's storage arrangements did not undermine the core finding, and the appeal was dismissed.

1. Court of Appeal (Civil Division): On 9 June 2008, the court dismissed the appeal under [2008] EWCA Civ 831.
2. Middlesbrough County Court: HHJ Fox QC dismissed the appellant's personal injury claim after a liability-only trial, by order dated 17 October 2007.