Mann v Northern Electric Distribution Ltd

Under regulation 20(2)(a) of the Electricity Supply Regulations 1988, compliance is not determined by fence height alone. Surrounding features may require further security measures where they are reasonably practicable to prevent danger or unauthorised access. Reasonable practicability requires consideration of the gravity and likelihood of the risk and the sacrifice needed to avert it. Foreseeability is assessed by reference to the particular route and means of entry. It may be foreseeable that a person will climb railings without being foreseeable that the person will scale the remaining wall using an improvised ladder. The minimum fence height is measured from ground level. On the facts, further anti-climb measures were not required because the decisive method of entry was not foreseeable.

The claimant, aged 15, trespassed into the respondent’s electricity substation and was severely injured after coming into contact with a 66,000-volt bus bar. He relied solely on regulation 20(2)(a) of the Electricity Supply Regulations 1988. The substation had a high perimeter wall, railings, a buttress and rotating anti-climb devices, but the devices did not cover all sides of the buttress.

Mr Recorder Fairwood dismissed the claim in Middlesborough County Court on 2 March 2009. He found that climbing onto the railings was foreseeable, but that scaling the remaining wall, including by using a makeshift ladder made from wooden debris, was not. The appeal concerned the construction of the regulation, the meaning of reasonable practicability and whether further anti-climb measures were required.

The Court of Appeal unanimously dismissed the appeal. Wilson LJ gave the judgment, with Henderson J and Ward LJ agreeing.

1. Scope of the regulation. Regulation 20(2)(a) imposes an obligation to take specified action, so far as reasonably practicable, to prevent danger or unauthorised access. Whether a fence is sufficiently high cannot be determined in isolation from its surrounding features. Although the provision refers to a fence and its height, it may indirectly require additional measures, such as rotating anti-climb devices, where the fence would otherwise fail to provide the required protection.
2. Reasonable practicability. The court applied the approach in Edwards v National Coal Board [1949] 1 KB 704 and Austin Rover Group Ltd v HM’s Inspector of Factories [1990] 1 AC 619. The assessment requires the gravity and likelihood of the risk to be weighed against the sacrifice involved in preventing it, including money, time and trouble. The court accepted the observation in Baker v Quantum Clothing Group [2009] EWCA Civ 499 that the quantum of risk includes the gravity of the possible harm as well as its likelihood.
3. Foreseeability and appellate review. Foreseeability could differ between stages of the proposed entry. It was foreseeable that a youth might climb the railings, but the recorder was entitled to find that the further climb and the use of a precarious makeshift ladder were not foreseeable. That was a finding of secondary fact reached with the benefit of oral evidence and a site visit. It was unassailable on appeal. Since the decisive means of entry was not foreseeable, further measures were not reasonably practicable.
4. Height measurement. The minimum height required by regulation 20(2)(a) is measured from the ground, irrespective of other features which may make scaling the fence easier. The respondent’s reliance on sections 1(3) and 1(4) of the Occupiers’ Liability Act 1984 did not displace the separate regulatory inquiry.

• Court of Appeal (Civil Division): On appeal from the dismissal of the claim by Mr Recorder Fairwood in Middlesborough County Court, dismissed the appeal: [2010] EWCA Civ 141.
• Middlesborough County Court: Dismissed the claimant’s claim on 2 March 2009.