EWJ 60 April 2025 web - Journal - Page 61
breach could ever be logically causative even if there
was a duty to do it), this level of intervention was not
enough to amount to an assumption. Comparison can
be drawn with the interventions which did trigger duties in Barrett and Jebson[5], and the interventions
which did not in Tindall[6], and the cases referred to
by the Supreme Court therein namely East Suffolk
Rivers[7], Ancell[8], Capital & Counties[9], Gorringe[10]
and Michael[11].
counsel, the distinction is somewhat artificial because
most cases can be analysed as either act or omission.
13. HHJ Clarke, sitting as a High Court judge, made
short shrift of this latter argument. It was “crystal
clear” that this was an omissions case, shown not least
by all nine of the maintained particulars of negligence
being framed as failures. The defendant did nothing to
cause the claimant harm, nor did it carry out any action
which caused injury. To suggest that semantic wordplay renders the act/omission distinction artificial forgets that Lord Reed specifically rejected this argument
in Robinson. Turning to the claimant’s case law, HHJ
Clarke agreed with defendant counsel that these cases
did not assist. Heary v Phinn was a Scottish first instance
decision based on first principles (which we now know,
following Robinson, to be wrong), and duty of care was
not argued on appeal in Sayers (the live issue instead
being remoteness). Anyway both cases concerned
being locked in, where the claimants were effectively
made prisoners by the defendants’ actions, which is a
materially different scenario to the index case.
9. The Supreme Court in Tindall further clarified that
the fact a public authority (which presumably extends
to an occupier) had intervened in the past in a manner which would confer a benefit on members of the
public was not of itself sufficient to give rise to a duty
to act in the same way (or at all). This surely pierces the
sail of an argument that the usual practice of shouting
into the toilets created a duty of care to do so. A further interesting discussion would have been that of
reasonable reliance; where, as in this case, the form of
intervention was not direct and personal, rather it was
a policy owed to a category of persons (unknown
residual occupants of the toilets), does it come closer to
the assumption cases involving professional advice
where claimants must demonstrate reliance?
14. Claimant counsel had also relied in submissions on
Mr Justice (as he then was) Beldam’s seemingly supportive decision in Munro[17], though the Judge
agreed with defendant counsel that this is now bad
law. Beldam LJ markedly did not refer to his decision
in Munro when giving judgment in the later case of
Barrett, for which he sat in the Court of Appeal and
reached the opposite conclusion, as was noted by the
Northern Irish Court of Appeal in Joy v Newell. Similarly the case of Jebson was not analogous as the defendant in that case had performed the positive act of
physically transporting the claimant. Conversely the
defendant’s case law was analogous and authoritative,
especially Ovu.
10. Not needing to argue assumption, the defendant
pointed to analogous authorities such as Barrett, the
Northern Irish case of Joy v Newell[12], and in particular Master McCloud’s judgment in Ovu[13]. This was
a very similar case involving an intoxicated visitor to
Canning Town tube station who sadly died after falling
down a set of stairs he had reached after walking
through gates at the end of a platform. A member of
station staff had been alarmed to the gate having been
passed through, and attended to close the gate, though
– contrary to the defendant’s policy – did not go any
further to check if anyone was there. The deceased was
not discovered and was prevented from re-entering
through the gate he came through, but was not
trapped because he could venture further to the emergency exit onto the outside world. Master McCloud affirmed the distinction between ‘occupancy’ and
‘activity’ duties, confining the OLA 1954 to the former.
In her judgment no common law duty arose and thus
the claim failed. The existence of the policy to check
the exit structure did not establish a common law duty
of care to do so. The reader will note that this latter
reasoning is synchronous with that of the Supreme
Court in Tindall as described above in paragraph 9.
15. Overall, therefore, this was an omissions case not
falling within any of the exceptions, and there was no
duty of care. The parties gave submissions on the
Caparo criteria and whether the Court should identify
a novel duty, though HHJ Clarke reasoned there were
determinative analogous authorities hence it would be
unnecessary and wrong to perform this exercise.
16. Accordingly the claim fell to be struck out, albeit
with sympathy for the seriously injured claimant. The
defendant was awarded its costs, with an order for an
interim payment on account of costs which has been
satisfied by the claimant’s ATE insurer.
11. Claimant counsel relied in reply on the case of
Jebson[14] in which the defendant employer was held
to owe a duty of care where it had put on transport
after a night out for its employees who knew were
likely to be intoxicated. Reliance was also placed on
two cases involving claimants being injured while
trying to escape from premises they had been locked
inside, namely Sayers[15] and Heary v Phinn[16].
Richard has a successful civil practice acting for both defendants and claimants, often in high value cases, either as sole
counsel or led by prominent KCs. He has both breadth and
depth of knowledge and is particularly fluent at arguing complex points of law. Before pupillage he worked on seminal appeals in the civil division of the Court of Appeal as Judicial
Assistant to Lord Justice Jackson, from which he developed
nuanced and sophisticated analysis of case law.
12. This was not, claimant counsel contended, an
omissions case. Rather this was a “negligent failure to
perform a positive act”; they had a duty to inspect the
premises to ensure vacancy, and they performed this
positive act negligently. In any event, said claimant
Michael Gwilliam is a partner at DWF who specialises in
defendant personal injury work, often with an international
element. He is ranked as a Band One individual by
Chambers & Partners. In addition to his international work,
Michael has a busy caseload covering a full range of UK
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