[HOUSE OF LORDS.]

AND

Fatal Accident - Negligence - Evidence - Onus of Proof - Fatal Accidents Act, 1846 (9 & 10 Vict. c. 93).

The defendants owned two floating docks called the East and West Floats. A boilermaker, who was working for a contractor on a ship lying in the East Float, left the ship at 4.45 on a December afternoon to go to the latrine and was never seen alive again. There was a dense fog at the time. His way from the ship to the latrine lay southward across a piece of ground bounded on the east and west by the two floats and on the south by the waterway connecting them, and then over a bridge crossing the waterway, the latrine being at the south end of the bridge. A line of posts and chains was placed round the three sides of the land which were surrounded by water. The chains were taken down from time to time to afford access to the quay, but the dock officials had instructions to see that they were kept in position so far as practicable. The man's body was found in the West Float opposite to a point where there was a gap in the line of chains, the chain having been taken down

for the convenience of some men working on the quay and having been left down for several days. The quay side of the West Float was nearly fifty yards out of the man's proper course.

In an action by his widow under the Fatal Accidents Act, 1846, against the defendants for damages for the death of her husband:-

Held (by Viscount Cave L.C., Lord Sumner and Lord Carson; Lord Shaw of Dunfermline and Lord Buckmaster dissenting), that, in the circumstances, the failure of the defendants to keep the chain in position was not a breach of any duty owed by them to the deceased, and that the action failed.

Hardcastle v. South Yorkshire Ry. Co. (1859) 4 H. & N. 67 and Walker v. Midland Ry. Co. (1886) 55 L. T. 489 applied.

Semble also, on the principle of Wakelin v. London and South Western Ry. Co. (1886) 12 App. Cas. 41, assuming negligence, the trial judge was entitled to find that the plaintiff had not proved that the negligence was the cause of the death.

Decision of the Court of Appeal reversed.

APPEAL from an order of the Court of Appeal reversing a judgment of Branson J.

The following statement of facts is taken from the judgment of the Lord Chancellor:-

The appellants were the owners of the Birkenhead Docks, which included two large floating docks called the East and West Floats. On December 9, 1920, the respondent's husband, Albert Procter, who was a boilermaker, was working for an engineering contractor on board the steamship City of Genoa, then lying in the East Float. There was a dense fog during the whole of that day. At about 4.50 P.M. Procter left the City of Genoa, saying that he was going to the latrine, and it was understood that he would then return to his work. He was never again seen alive. On the following day his cap was found in the West Float between the bows of two ferry boats which were moored near the north-east corner of that float, and next day his body was found at the same place. His watch had stopped at five minutes past 5 o'clock.

Procter's way from his ship to the latrine lay southward across a piece of ground separating the East and West Floats, and over a bridge at the southern end called the Duke Street Bridge, the latrine being just on the other side of the bridge. This piece of ground measured about eighty-five yards from east to west and about fifty yards from north to south. It was bounded on the east and west respectively by the two

floats, and on the south by the waterway connecting them and the bridge over it. It was traversed from north to south, and slightly to the eastward of the centre of the ground, by two double lines of rails leading to and over the bridge, the rails being laid flush with the ground in granite setts, and the ground on each side of the setts being rough ground. It was said, and was not denied, that the site of the railway was used as a public highway from Seacombe to Birkenhead; and it was lighted by lamps, which were alight on the evening in question. Round three sides of this piece of ground, where it was bounded by the two floats and the waterway between them, and at a distance of about twelve feet from the dockside, there was a line of stanchions placed at intervals of about fifteen feet from one another, and chains were provided to hook to these stanchions and hang between them. Whether the chains were intended for the protection of pedestrians or only for the safety of wheeled traffic was not stated, but the latter appeared the more probable reason. The chains were often taken down to afford access to the quay, but persons employed about the docks had instructions to see that the guard chains were in position. The chain directly opposite to the place where Procter's body was found had been detached for some days, apparently for the convenience of some men who were at work on some alterations to the quay, and was curled round the stanchion, so that access to the dock from the area of land was uninterrupted at that point. Some heaps of gravel and other obstructions lay near to, but not directly in front of, the opening. The edge of the West Float was parallel to and about forty-five yards distant from the paved way and lines of rails.

The respondent, the widow of Procter, brought an action against the appellants under the Fatal Accidents Act, 1846, claiming damages on the ground that her husband's death had been caused by the appellants' negligence. The negligence alleged was that the quay was not fenced or guarded at the place where the man walked into the dock, and that no warning had been given to him of the existence of this unfenced or unguarded part of the quay, and that this unfenced

part of the quay was in its then condition in the nature of a trap, the existence of which was known to the defendants and their servants and unknown to Procter.

The action was tried by Branson J. without a Jury; and after hearing the evidence for the plaintiff he dismissed the action, stating that he was not satisfied that the omission to have the chain placed in position in the particular spot was negligence, and, further, that he was not satisfied that, even had the chain been there, the accident might not have happened. On appeal, the Court of Appeal by a majority (Bankes and Warrington L.JJ.; Atkin L.J. dissenting) held that the plaintiff had proved negligence on the part of the defendants, which had caused the death, and accordingly set aside the judgment of Branson J. and ordered a new trial.

1923. Feb. 1, 2. Greaves Lord K.C. and Singleton K.C.(J. M. Helme with them) for the appellants. The trial judge, after hearing the respondent's witnesses, was entitled to find that the respondent had failed to establish any negligence or breach of duty on the part of the appellants or that the deceased man was drowned through any such negligence or breach of duty, and his findings ought not to be disturbed: Coghlan v. Cumberland (1); Kerr or Lendrum v. Ayr Steam Shipping Co. (2) The duty of an occupier of premises towards an invitee is to "use reasonable care to prevent damage from unusual danger which he knows or ought to know": per Willes J. in Indermaur v. Dames. (3) But, first, the duty is limited to those places to which a person may reasonably be supposed to be likely to go in the belief, reasonably entertained, that he is invited or entitled to do so: Walker v. Midland Ry. Co. (4); and, secondly, in considering the meaning of "unusual danger" the question is not whether the danger is unusual with regard to all the world but whether it is unusual with regard to the particular complainant: per Phillimore L.J. in Norman v. Great Western Ry. Co. (5)

(1) [1898] 1 Ch. 704.

(2) [1915] A. C. 217.

(3) (1866) L. R. 1 C. P. 274, 288; affirmed (1867) L. R. 2 C. P. 311.

(4) 55 L. T. 489, 490; 2 Times L. R. 450, 451.

(5) [1915] 1 K. B. 584, 596.

Here there was no invitation, express or implied, to the deceased man to go to the quay side of the West Float, and, further, the trial judge had before him evidence upon which he could find, as he did, that the absence of the chain was not an unusual danger to this man, inasmuch as it was known to those working about the docks that no reliance could be placed upon the chain being in position at any particular time. There being here no invitation and no unusual danger, there was no evidence of any breach of duty on the part of the appellants: Gautret v. Egerton. (1) [They also referred to Wilkinson v. Fairrie (2) and to the comment thereon in Halsbury's Laws of England, vol. xxi., p. 390.]

Merriman K.C. (with him Madden K.C. and J. W. Morris) for the respondent. A finding of fact by a judge of the High Court does not stand on the same footing as a finding by a jury, and, where the question depends, not upon the credibility of the witnesses, but upon the proper inference to be drawn from admitted facts, the original tribunal is in no better position than the appellate tribunal: Montgomerie & Co. v. Wallace-James (3); Dominion Trust Co. v. New York Life Insurance Co. (4) The question whether the deceased man was invited to this particular spot on the docks is not the question to be determined, otherwise Indermaur v. Dames (5) would not have been decided as it was. Dickson v. J. A. Scott, Ld. (6) also deals with this point. A reasonable latitude must be allowed. Having regard to the position of the chains and to the fact that the deceased man was a workman having work to do on the docks, so long as he kept within the chains he was within the area of the invitation. The test of whether or not he was within the area of invitation and the question whether he was guilty of contributory negligence are for the purposes of this case one and the same. The duty of the appellants was to guard against any mistake which a man might naturally make. This is implied in the

(1) (1867) L. R. 2 C. P. 371, 375.

(2) (1862) 1 H. & C. 633.

(3) [1904] A. C. 73, 75.

(4) [1919] A. C. 254.

(5) L. R. 1 C. P. 274, 288; L. R. 2 C. P. 311.

(6) (1914) 30 Times L. R. 256.

passage quoted by the appellants from the judgment of Lord Selborne in Walker v. Midland Ry. Co. (1) The deceased man knew that the appellants took upon themselves the duty of keeping a complete line of chains around the promontory. That being so, he might reasonably anticipate that if he went wrong he would be pulled up by a chain, and by neglecting the usual precaution of seeing that the chain was in position the appellants misled him: Smith v. South Eastern Ry. Co. (2) Even if the deceased man was a licensee only the respondent is still entitled to succeed, because it was the duty of the appellants not to lay a trap for him: Bolch v. Smith (3); Corby v. Hill. (4)

Greaves Lord K.C. in reply, on the question of the limits of the invitation, cited Hardcastle v. South Yorkshire Ry. Co. (5) and Binks v. South Yorkshire Ry. Co. (6)

The House took time for consideration.

1923. March 13. VISCOUNT CAVE L.C. My Lords, this is an appeal from an order of the Court of Appeal in England setting aside a judgment of Branson J. and ordering a new trial. [His Lordship stated the facts and continued:] My Lords, it was contended on behalf of the appellants that the finding of Branson J., being a finding of a trial judge on a question of fact, should not have been disturbed by the Court of Appeal. In my opinion there is no ground for such a contention. The duty of a Court hearing an appeal from the decision of a judge without a jury was clearly defined by Sir Nathaniel Lindley M.R. in Coghlan v. Cumberland (7), and by Lord Halsbury in Montgomerie & Co. v. Wallace-James (8), and is no longer in doubt. The procedure on an appeal from a judge sitting without a jury is not governed by the rules applicable to a motion for a new trial after a verdict of a jury. In such a case it is the duty of the Court of Appeal to make up

(1) 55 L. T. 489, 490; 2 Times L. R. 450, 451.

(2) [1896] 1 Q. B. 178, 183.

(3) (1862) 7 H. & N. 736, 742; 31 L. J. (Ex.) 201.

(4) (1858) 4 C. B. (N. S.) 556, 567.

(5) 28 L. J. (Ex.) 139, 141; 4 H. & N. 67, 74.

(6) (1862) 3 B. & S. 244.

(7) [1898] 1 Ch. 704.

(8) [1904] A. C. 73.

its own mind, not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes into question, but with full liberty to draw its own inference from the facts proved or admitted, and to decide accordingly. In the present case there is no question of the credibility of witnesses. The material facts, so far as they are known, are undisputed; and the Court of Appeal was at liberty, and indeed was bound, to draw its own inference from them.

The respondent's case is rested on the well-established principle that where a landowner invites or induces a person to go upon his land, not as a bare licensee but for some purpose in which both have an interest, he must make reasonable provision for that person's safety. This rule was clearly stated in the judgment of Willes J. in Indermaur v. Dames (1), where that learned judge summed up the law as follows:-

"The class to which the customer belongs includes persons who go not as mere volunteers, or licensees, or guests, or servants, or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier, and upon his invitation, express or implied. And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as matter of fact."

In the present case it is not disputed that the deceased man came within the class described by Willes J. He came upon the dock property and passed to and from the vessel where he was engaged upon business which concerned both the dock company and himself; and he was entitled, subject to using reasonable care on his part, to expect that the dock company

(1) L. R. 1 C. P. 274, 288; affirmed L. R. 2 C. P. 311.

should use reasonable care to protect him from any unusual danger known to the company and not known to or reasonably to be expected by him. If so, the questions of fact which arise or may arise are three - namely, (1.) Were the appellants guilty of negligence or want of reasonable care for the safety of the deceased? (2.) If so, was their negligence or want of care the cause of his death? and (3.) Was there any contributory negligence or want of reasonable care on his part for his own safety?

In dealing with the first question, it is important to bear in mind the exact nature of the appellants' duty to the deceased. It was not to give him absolute protection in whatever part of the appellants' premises he might be found, but only to use reasonable care for his safety while he was upon their land and acting in compliance with their invitation; and this duty must be limited, as Lord Selborne pointed out in Walker v. Midland Ry. Co. (1), to those places to which he might reasonably be expected to go in the belief, reasonably entertained, that he was entitled or invited to do so. If this test is applied, it appears to me that there was no breach of duty on the part of the appellants. The deceased was not invited or entitled to go to the quayside of the West Float; he had no business there, and it was nearly fifty yards away from his proper route to and from his ship. Nor could the dock company be expected to foresee that he would wander so far from his way, even in a fog, and to provide for his safety in so doing. If it be the fact that he lost all sense of direction in the fog and, missing the rails and lamps which would have guided him to the bridge, and not seeing any of the obstacles lying about the area of ground or even the stanchions on each side of the space from which the chain had been removed, walked straight through this narrow opening into the dock, this was an extraordinary mischance which no one could be expected to foretell or provide for; and I do not think that the failure of the company to do so argues any want of reasonable care on their part.

It is said that whatever may be the case in other dockyards,

(1) 55 L. T. 489, 490.

where the docks are generally left unfenced, the fact that in this case the area over which the deceased had to pass was in fact protected by chains, makes a difference, and accordingly that he was entitled to expect that the chains would remain up; and the "trap" cases are referred to. In my opinion the principle of those decisions has no application to this case. When a person is invited or licensed to pass by a particular way, and the landowner without warning to him does something which makes it dangerous for him to use that way, liability may no doubt be incurred. But this is because the use of the permitted way itself is subjected to an unknown and unexpected danger; and where, as here, the danger zone is far removed from the permitted way, the same considerations do not apply. To say that a landowner who permits an element of danger to exist in a place to which he neither invites nor expects a person to go thereby sets a trap for that person would appear to me to be a strange use of language. In Hardcastle v. South Yorkshire Ry. Co. (1), where a man had wandered from a highway and had fallen into a reservoir on land at some little distance from the highway, the Court held the owner of the land not liable; and Pollock C.B. made the following observations:-

"When an excavation is made adjoining to a public way, so that a person walking upon it might, by making a false step, or being affected with sudden giddiness, or, in the case of a horse or carriage way, might, by the sudden starting of a horse, be thrown into the excavation, it is reasonable that the person making such excavation should be liable for the consequences; but when the excavation is made at some distance from the way, and the person falling into it would be a trespasser upon the defendant's land before he reached it, the case seems to us to be different. We do not see where the liability is to stop. A man getting off a road on a dark night and losing his way may wander to any extent, and if the question be for the jury no one could tell whether he was liable for the consequences of his act upon his own land or not."

(1) 4 H. & N. 67, 74.

It is true that these observations had reference to a public way, but the reasoning appears to me to apply equally to a way which a person is invited or permitted to use.

The result is that in my opinion no negligence on the part of the company was proved; and if so, the other questions do not arise. But I think it right to add that, even if negligence by the company be assumed, I do not consider it proved that their negligence was the cause of the accident. No doubt it is a probable surmise that the deceased man lost his way in the fog, and unhappily missing all the signs which would have shown him his mistake, and either not knowing of or not remembering the gap in the chains, walked straight through it into the dock. But the Court does not deal with surmises, but with proofs; and the known facts are equally consistent with the view that, knowing that he had left the line of rails and lamps and had got on to soft ground, he failed to take reasonable pains to regain a place of safety, and so lost his life by his own imprudence, or with the view that, knowing of the gap in the chains (which he must have seen twice a day at least for several days before the accident), he purposely passed through it intending to speak to some one on the ferry boats and stumbled into the dock. Of course, neither of these hypotheses is proved, but neither is excluded by the evidence; and it is for a plaintiff who alleges that loss has been caused by the defendant's fault to establish that case beyond reasonable doubt. Upon this point Wakelin v. London and South Western Ry. Co. (1) is directly in point. In that case a widow sued a railway company under the Fatal Accidents Act, 1846, for damages for negligence causing her husband's death; and it was proved that the dead body of the man was found on the railway line near a level crossing not guarded by a watchman, and that the man had been killed at night by a train which carried the usual headlights, but did not whistle or otherwise give warning of its approach. On these facts this House, affirming the Court of Appeal, held that, assuming (but without deciding) that there was negligence on the part of the company, there was

(1) 12 App. Cas. 41, 44.

no evidence to connect the negligence with the accident, and accordingly that there was no evidence to go to the jury. Halsbury L.C. stated the principle as follows:-

"It is incumbent upon the plaintiff in this case to establish by proof that her husband's death has been caused by some negligence of the defendants, some negligent act, or some negligent omission, to which the injury complained of in this case, the death of the husband, is attributable. That is the fact to be proved. If that fact is not proved the plaintiff fails, and if in the absence of direct proof the circumstances which are established are equally consistent with the allegation of the plaintiff as with the denial of the defendants, the plaintiff fails, for the very simple reason that the plaintiff is bound to establish the affirmative of the proposition: 'Ei qui affirmat non ei qui negat incumbit probatio.'" Similar expressions are to be found in the judgments of the Court of Appeal in Norman v. Great Western Ry. Co. (1), and I think that they apply with great force to the present case.

It is impossible not to feel compassion for the respondent in her loss; but she has undertaken to prove that the appellants are responsible for it, and in my opinion she has failed to do so. This being so, I am compelled to hold that this appeal should succeed, and I move your Lordships that the order of the Court of Appeal be set aside and the order of Branson J. restored; but as the respondent has been a great sufferer, and in view of the differences of opinion in the Court of Appeal and (as I understand) in this House, I would propose to your Lordships that there should be no costs of the proceedings in the Court of Appeal or in this House.

LORD SHAW OF DUNFERMLINE. My Lords, I am so entirely satisfied with the judgments pronounced in this case by the learned Bankes and Warrington L.JJ. that I could be well content to adopt these opinions without presuming to add anything thereto. In view, however, of the difference of view

(1) [1915] 1 K. B. 584.

in your Lordships' House, I may be permitted as briefly as possible to put the case in my own way.

The action is founded upon negligence, and negligence must be proved. It is raised by the widow of a boilermaker, who met his death in the circumstances described, and whose position on the dockside was that of an invitee. He was in the service of engineering contractors on board the steamship City of Genoa, then lying in the East Float of Birkenhead, one of the appellants' docks. He had been for some weeks engaged on that job, and he had the right, of course, to reach it from Birkenhead, proceeding over a promontory in the form of a parallelogram which was surrounded on three sides by water.

The accident occurred during his working hours, which lasted till 7.30 in the evening. He left the ship to proceed to a latrine, the workmen not being permitted to use the latrine accommodation on board. While so proceeding, he went over the dockside and was drowned. He entered the shed and made his exit from the door of that for five or six yards by the aid of lamplight. His correct course was to have sheered to the left at an angle of about 75 degrees. The night, however, was very dark and there was a fog so thick as to prevent one even seeing one's own hand. Such lamps as there were shed only light to a distance of five or six yards; the rest of the parallelogram was shrouded in fog.

To approach the question of negligence it is necessary to consider what was the duty of the defendants, the Dock Board, with regard to that piece of ground. That they had a duty, and were properly conscious of that, is, I think, beyond question. The three sides, in so far as these abutted on the water, were protected by posts with chains slung between them. As the square was used in part as a thoroughfare both for pedestrian and vehicular traffic, this precaution taken by the Board is not to be wondered at. I should not be prepared, however, without further argument to affirm that the Board were bound to fence that square. The open face of docks in such neighbourhoods is familiar to all inhabitants. It may, of course, be, that a square of

this description, having to be crossed and recrossed by men working on ships under repair in all weathers and by day and night, involved as a necessity that precaution which the Board properly took. But, as I say, it is not necessary to pronounce upon that in the abstract.

The case, however, that comes before the House is a different and very distinct case - namely, that of a square open on three sides to a water danger and fenced therefrom as a matter of general precaution, but negligently left unfenced in circumstances of extreme and exceptional peril. In my opinion, the leaving of a part of the fencing open was in itself the creation of a danger of a very serious kind. In a dark and foggy night a passenger across the square reaching the chain is by that guided to the point of safety where he can cross the bridge. To remove that guidance and to leave a gap through which the passenger may step on to and over the dockside into deep water and be drowned is a negligent omission for which the Dock Board is responsible.

A satisfactory feature of this case is that the appellants seem thoroughly to have realized that fact themselves. Their prescriptions by regulation appear in these proceedings. On the subject of keeping the guard chains in order interrogatories addressed to the Dock Board are produced in answer to a question as to what precautions are taken. The answer is as follows - namely: "There are no special precautions taken by the Board's officials in foggy weather beyond seeing, as far as is reasonably possible, that the guard chains are all in position."

In response to a question as to whether there are any regulations or instructions issued by the appellants in reference to the protection of the quay in foggy weather: The answer is: "The guard chains and stanchions at the North East corner of the West Float on December 9 last were under the control of the Pier Master in charge. There are no written regulations defining whose duty it is to remove and replace guard chains. If the chains are removed by any one it is his duty to replace them, or to see that they are replaced. Further, the officials of the Harbour Master's Department

and the Police have instructions to see, as far as practicable, that the guard chains are in position and to replace any which happen to be out of position."

Then, my Lords, there come certain entries which come near to the circumstances of the present case. A circular from the harbour master, dated January 26, 1912, is printed. It is as follows: "Guard chains. - The Board having recently settled a claim for personal injuries, etc., caused through the breaking of a guard chain upon which a man was sitting and which had been tied up temporarily with a piece of cord, I have to direct that strict attention be given to the following instructions on the subject of guard chains generally: (1.) The working-dock-man must examine daily all guard chains and afterwards record in the shed book particulars of any guard chains broken or otherwise out of order. (2.) In the event of guard chains or hooks being found broken, immediately send word to the Foreman Scuttler, who will have repairs effected without delay, and report the matter to me in due course."

Still further, and almost directly bearing upon the issue of the present appeal, there is a copy of the head constable's order: "It seems that there is some misunderstanding about the duty of the Police in the matter of the guard chains at the Docks. Although it is not their duty to go round their beats for the purpose of putting them up, it certainly is their duty to put up any chain which they may find down without necessity when there is the least chance that its being left down is a source of danger."

It appears to me to be demonstrated by these citations that the appellants, having placed chains in position, were alive to the peril of not keeping them in position, and were anxious to recognize as a matter of duty the replacement of the chains whenever a particular purpose of removal was ended, and the making of a report of accurate replacement and of all being in order. My Lords, I do not accordingly have any difficulty in finding that a violation of these orders involves negligence, nor is there any doubt in the present case as to such a violation having occurred. One of the chains

was removed, it was wrapped round the adjoining post, and knotted; the gap thus left was left for days, the knotted chain beginning to rust. All that is clearly proved: the orders and precautions on the regulations and orders had been violated. I think this clearly points to negligence. I think the learned dissenting judge, Atkin L.J., was right when he said: "Whether or not it is their duty to have some means of protection, I think that their legal duty is altered when once they do take upon themselves the position of protecting the approach to the water, because under those circumstances they do allow a person who knows the position to rely upon that protection being there in the circumstances in which it ought usually to be there."

In my opinion these propositions are sound in law.

This induces me to refer at this stage to a notable circumstance in connection with the judgments of the Court below. The learned Branson J., and also, I incline to think, Atkin L.J., are not satisfied that Procter walked through the gap referred to and so met his death. I do not gather that there is any difference of opinion among your Lordships on this point. His cap, and afterwards his body, were found in the water immediately opposite the gap. There is no suggestion that he got to the dockside by any other access or that there was any current in the water which would have made his body drift to the point where it was found. Of course, my Lords, it follows, however, that if a judge holds it not to be sufficiently proved that the deceased went through the gap, the rest of the case suggesting negligence is mere surplusage. I incline to the opinion that, if the learned judges to whom I have referred had been satisfied, as your Lordships are, on this vital point, they might not have come to the opinion which they reached. In any event it is pretty clear that Branson J. would not, as he did, have stopped the case at the end of the plaintiff's evidence. An outstanding feature of the case is the precautions demanded even under the rules of the dock for seeing that the chains were up, but if the learned judge was not satisfied that the deceased passed where a chain was down, then from that point of view he need

have gone no further. The whole of this case, unfortunately, is thus subject to that judicial mischance. Had the case proceeded to its natural termination and the dock authorities had been asked to explain the rule, the necessity for it, the history of the absence of chains when they should have been there and so on, no doubt the position of this gap which turned it into a trap might have been most completely verified. All that we have is that the Dock Board was scrupulous as to having the chains always up because of one previous accident which is put on record. How many more accidents there were caused by the condition of the chains, we do not know, or whether there were any. But the whole of that inquiry has been excluded mainly, though not entirely, because the judge who tried the case saw no necessary connection between the gap and the death. In these circumstances I incline to the opinion that it would be a complete failure of the law to reach a remedy for a wrong or to ascertain whether a wrong was committed to keep back the case from full investigation. A legal problem of complexity, however, remains - namely, let it be assumed that Procter, the deceased man, was an invitee, did the duty of the Board extend to that particular man? Although keeping on to the square he had proceeded in the fog and darkness off his route. When he did so, it is urged, he lost the status of a person to whom the Dock Board owed a duty and his rights were not those of an invitee, but at the most that of a bare licensee, if so much.

The refinements of distinctions between these categories are notorious, and one general rule as laid down by Lord Esher M.R. may be said to apply to both. In Thatcher v. Great Western Ry. (1) Lord Esher puts it thus: "If a person was on the premises of another with that other's consent, the latter had a duty to take reasonable care not to act in such a way as to cause personal injury to the former." That would apply to both categories. In Holmes v. North Eastern Ry. Co. (2) the discrimination between the position of

(1) (1893) 10 Times L. R. 13.

(2) (1869) L. R. 4 Ex. 254, 259; affirmed (1871) L. R. 6 Ex. 123.

a licensee from a person present on certain premises to whom the occupant has a duty to take care, is thus expressed by Cleasby B., "as soon as you introduce the element of business, which has its exigencies and its necessities, all idea of mere voluntariness vanishes." And so in Smith v. London and St. Katharine Docks Co. (1) the company was held liable, they being the owners of docks, who provided access to vessels by means of gangways over. To quote Bovill C.J., "the gangway being placed there as the means of access to all persons having business on board the ship, it amounts to an invitation to persons having business on board the ship to go upon it."

In my opinion, (1.) the appellants were bound to provide a reasonably safe access and exit across the square of land in question for workmen employed at the docks; (2.) the workmen so employed were entitled to consider the square as fenced by posts and swing chains and may be taken to have known or properly assumed that this was so; and (3.) the removal of the chains constituted a trap into which, unfortunately, the deceased was led and so met his death.

It is now necessary to see exactly what the deceased did. Having emerged from the shed adjoining the ship where he was working, he advanced a few paces by the light of a lamp and then sheered to the left. All this was right, but instead of sheering at an angle of 75 degrees and walking on admitting no impediment and being safe, he sheered only at an angle of 45 degrees and walked on and met no impediment and was drowned. Branson J. says: "Now that shows that all the surroundings and the approaches to this place where the chain was down were, one might say, almost completely guarded by the obstructions which were put there. The opening which was left was a small one, and, so far as the evidence goes, there is no evidence to show that those persons who had the authority of the Board on the spot had any reason to expect that anybody would come along blundering in among those dumps of material in such a way as to cause

(1) (1868) L. R. 3 C. P. 326, 332.

the chains being down to constitute any risk that anybody would come to mischief."

My Lords, this in no way represents the actual state of matters with regard to the unchained gap. It appears clearly from the evidence, to use the language employed by the witness Forsyth: "You could walk straight from Hall Shed to where the body was found without meeting any incumbrance whatever." Had the chain been on he would not have been drowned; he would have been guided to safety. He was not guilty of contributory negligence; that is not suggested. The ambit, accordingly in my opinion, of the responsibility in such cases extends on the part of the Dock Commission to all invitees legitimately on the ground: "as soon as you introduce the element of business, which has its exigencies and necessities." The route from the ship, all on dock ground, in this case seems to be entirely the opposite of that put by Bowen L.J. in Thomas v. Quartermaine (1), "where the danger is one incident to a perfectly lawful use of his own premises, neither contrary to statute nor common law, where the danger is visible and the risk appreciated, and where the injured person, knowing and appreciating both risk and danger, voluntarily encounters them, there is, in the absence of further acts of omission or commission, no evidence of negligence on the part of the occupier at all." The circumstances of the present case are that the danger was not visible; that the risk was not appreciated; that the injured person did not know or appreciate either, and did not voluntarily encounter either; that there was no absence of act of omission, but that on the contrary it was a further act of omission, the permitting the chain to remain removed, that constituted the negligence and caused the death.

My Lords, I cannot refrain, in connection with the general doctrine of liability involved in such a case as the present, from showing how far the law has gone, even in regard to bare licensees. In Gallagher v. Humphrey (2) Cockburn C.J. says: "A person who merely gives permission to pass and repass along his close is not bound to do more than allow the

(1) (1887) 18 Q. B. D. 685, 697.

(2) (1862) 6 L. T. 684, 685.

enjoyment of such permissive right under the circumstances in which the way exists; that he is not bound, for instance, if the way passes along the side of a dangerous ditch or along the edge of a precipice, to fence off the ditch or precipice. The grantee must use the permission as the thing exists. It is a different question, however, where negligence on the part of the person granting the permission is superadded. It cannot be that, having granted permission to use a way subject to existing dangers, he is to be allowed to do any further act to endanger the safety of the person using the way. The plaintiff took the permission to use the way subject to a certain amount of risk and danger, but the case assumes a different aspect when the negligence of the defendant - for the negligence of his servants is his - is added to that risk and danger." The latter portion of this passage, which may be held as applying not only to invitees but even to licensees, seems clearly to point to liability in such a case as the present.

This authority, coupled with Indermaur v. Dames (1) and numerous other authorities (their number in this branch of the law is legion), appears to me amply to confirm the judgment of the majority of the learned judges in the Court of Appeal. I cannot doubt that any other decision will be accompanied with practical danger in results, and I highly deprecate what, in my humble opinion, would be the mischance to which I have referred, in which the learned judge, having stopped the case and given a decision, had, in an important element in deciding on such a course, taken a mistaken view of one of the fundamental facts of the case. In my view that mischance should be rectified, and the case should be fully tried.

LORD SUMNER. My Lords, it is common ground that the deceased, while at work on the City of Genoa, was an "invitee" of the Dock Board, for, as undertakers, the Board desires and is bound to admit ships to the docks, and that involves the admission also of persons, whom the shipowners

(1) L. R. 1 C. P. 274; L. R. 2 C. P. 311.

or their contractors engage to work upon the ships. It is also common ground that the expression "while at work" involves a certain margin and includes going to and coming from the ship for the purposes of the employment, and also going to and coming from the latrines, provided by the Board for such persons. This is common sense and, not having been in dispute, calls for no further comment. It may be, however, that the use of the public highway, which crosses the dock property, is no part of this invitation, but that the workman, even when using it for the purposes above-mentioned, does so merely as one of the public. The point need not be decided.

I think the very idea of an invitation to come upon the Board's premises, considering their character and extent, connotes some local limit within them. A free range over the whole estate is not given to every invited workman. The respondent, recognizing this, suggested two forms of limitation - the first, that the line of the stanchions and chains formed that limit; the second, that the limit varied according as the day was clear or foggy. As to the first, there is no evidence that the stanchions and chains were put up with any such purpose and, as a fact, I am sure they were not. As to the second, it amounts to this, that a man, who can see where he is going, enjoys the rights of an invitee within modest boundaries; but a man, who cannot, carries them with him as far as the limits of his actual error. Both suggestions are ingenious, but they are suggestions ad hoc. There is no decision to support them. The observations of Neville J. in Carshalton Urban Council v. Burrage (1) are the nearest that I can find, but they are directed to s. 30 of the Public Health Acts Amendment Act, 1907, while, in general, what is said in the Hardcastle Case (2) is much to the contrary.

The leading distinction between an invitee and a licensee is that, in the case of the former, invitor and invitee have a common interest, while, in the latter, licensor and licensee have none. The common interest here is that ships in the

(1) [1911] 2 Ch. 133, 138.

(2) 4 H. & N. 67, 74.

docks should, when necessary, be able to employ boilermakers on board of them. In the other case, the licensee has an individual interest in being allowed to pass, while the licensor, the leave being gratuitous, has no interest in the matter at all, so long as the licensee does not get into trouble or into mischief. I cannot see what common interest between the Board and the deceased is involved in his expatiating at will over the open ground between the East and West Floats. He was indeed at liberty to cross it to Gee's Dining Room, but we know that he was not going there and never did go there. The common interest, involved in his being able to do his work in comfort, extended to his visiting the latrine, but he was not actually visiting the latrine on this occasion, though he was probably trying to do so. He was actually going where he had no business to go at the time of the accident, though his mistake was alike innocent and accidental. How can a workman extend the Board's liabilities, indicated by this term "invitation," by making a mistake of his own and getting lost in a fog? What legal reason can there be for the Board's "inviting" him to go somewhere in a fog, where he does not want to go at all and would certainly not be invited to go in clear weather, and where, moreover, the Board has no interest or desire to invite him at any time? There is none: the suggestion is a mere impulse of compassion.

There is no question here of nuisance to a highway or of a specific obligation, general or particular, to erect and maintain fences. The place where the deceased's body was found was in no sense adjoining the highway. No statutory obligation to erect or maintain the stanchions and chains was referred to, and they may have been erected for many other purposes than that of preventing people from falling into the water in the dark: see the elaborate survey of the cases by Farwell L.J. in Latham v. R. Johnson and Nephew, Ld. (1)

If, then, the deceased's position was at best that of a licensee, what duty did the Board owe to him? What is charged against the Board is a pure act of omission - namely,

(1) [1913] 1 K. B. 398.

an omission to put up the chain. What the plaintiff must show is a duty towards her late husband to put it up or keep it up and an injury to him caused by the omission. To say that the Board provided chains, and made regulations under which this chain ought to have been put up but omitted to have it replaced, in circumstances involving danger to the deceased, constitutes no cause of action by English law, unless a duty to the deceased can be made out upon grounds of law and not a mere failure to do what would have made things safer, if done.

A licensee takes premises, which he is merely permitted to enter, just as he finds them. The one exception to this is that, as it is put shortly, the occupier must not lay a trap for him or expose him to a danger not obvious nor to be expected there under the circumstances. If the danger is obvious, the licensee must look out for himself: if it is one to be expected, he must expect it and take his own precautions. If he will walk blindfold, he walks at his peril, even though he is blindfolded by the action of the elements. As usual in cases of duties of care, the reasonable man is the standard on both sides. The licensor must act with reasonable diligence to prevent his premises from misleading or entrapping a licensee, who on his side uses reasonable judgment and conduct under circumstances that can be reasonably foreseen. The licensee is to take reasonable care of himself and cannot call a thing a trap, the existence of which a reasonable man would have expected or suspected, so as to guard himself from falling into it.

What were the facts? The deceased was a sober, experienced workman in the prime of life, not shown to have been unobservant or lacking in self-possession. He was an inhabitant of Birkenhead, constantly employed within the area of the docks, and he had actually been in regular employment on the City of Genoa for the previous fortnight. On leaving the shed to go, as he said, to the latrine, he found himself in a dense fog after dark. A fog, I take to be the typical case of a fortuitous but expected hazard, in which every one must, and knows that he must, walk warily.

Especially is this so when, as the man knew, the water of the dock lay within from 100 to 300 feet on three sides of him. As his fellow-workmen say, you must then be very careful; as they say also, the way to the bridge, for which he had to make, could be found by noting the run of the railway lines underfoot, the character of the paving and the sound made by footsteps upon it. Within thirty or forty feet of the shed door the deceased must have crossed eight, if not twelve rails, but, instead of following the line of them, he crossed the special paving of the railroad tracks and the marginal paving beyond and got on to rough macadamized ground. He must also have got away from the lamps, which, if he had followed the rails, would at short intervals have become visible. It seems to me that a reasonable man, so circumstanced, could not have failed to know, before he had got halfway to the West Float, that he was lost in the near neighbourhood of deep water.

In these circumstances what did it behove him to do as a reasonable man, and by what reasonable course on his part is the Board entitled to have the measure of its duty fixed? This is not a question of charging the deceased personally with contributory negligence. The question is, what was to be expected in such circumstances by the deceased on the one hand and by the Dock Board on the other?

It behoved the deceased at once to take stock of his position. I say nothing of the possibility of calling out to find out the direction of persons on the roadway or of trying back to strike the rails, which he had so recently left. I think that he should have said to himself, that the quays, which were steep-to and had deep water against them, were a pressing danger to a, man, who could not see where they were. True there were the posts and chains, but he must have known, as his mates knew, that they were often let down, and indeed are made detachable for that very purpose, and that, having been let down by stevedores and others not in the Board's employment, as well as, though less frequently, by the Board's own servants, it is in the ordinary course of human nature that they should often be left as they lie and

not be replaced, until one of the Board's servants finds time to put them up again. As Willes J. observes, a trap means something like a fraud. Now, though the Board may have represented, that when the chains were taken down they would be replaced as soon as possible, it never represented by word or deed that the chains would not be down at any time or at all, or that they actually were in position at the time in question. It is not to the point to say that the deceased had a right under the Regulations (if indeed he knew anything about them) to contend that the chains ought to be replaced at once, for a licensee cannot be heard to contend that an actual danger, of which he knows, is a danger that is concealed from him, because it arises from somebody's neglect of his duty. "Omnia pr¾sumuntur rite esse acta" has no application here. Neither is this a case of a person, who has an absolute right of user, seeking his remedy for the infringement of it by another, who has neglected to observe his duty not to infringe. If the gap may probably be there and the wanderer knows it, the knowledge is none the less knowledge, because there ought not to be any gap at all. On the other hand the possibility, that a man could fortuitously make his way through such an entanglement of obstructions without being brought up by the fullest warning, seems to me so remote a contingency, that I much doubt, if any practical man of whatever class would have expected the Board's servants to be on their guard against it, if the accident, which resulted in this case, had not been a fatal one.

Concealed dangers, as the term shows, are relative to the knowledge and the capacity of the person who suffers by them, and in this matter he must use his knowledge and his good sense reasonably and must act accordingly: see per Lord Atkinson in Cooke v. Midland Great Western Ry. of Ireland. (1) What must the deceased be taken to have known? He was no child. He knew that the fog prevented him from using the sense of sight for his protection. From his senses of feeling and of hearing he had the means of knowing that he had got beyond the road leading to the bridge.

(1) [1909] A. C. 229, 238.

He knew that the chains were his only protection from the water, towards which he might quite probably be going, and he knew that they were sometimes properly put down and sometimes were left down, though improperly. If he did not know what work was going on at the quay and the West Float, he knew that chains might be down in connection with any ships that might be lying there: if he did, he knew that they might be down in connection with the construction work that was actually going on, as indeed proved to be the case. If knowing the risk, he elected to go on and chance it, "volenti non fit injuria." He might have elected to try back. It is said that the effect of fog is so bewildering, that one loses all sense of direction. I rather think that varies a good deal with the man, the fog, and the nature of the ground, but let it be so; he might still have advanced step by step, feeling the ground before him with his foot before committing himself beyond the power of recall. The ground near the line of chains was littered with materials of various kinds, and, if we are to infer what is probable from evidence of what is certain, we ought to infer that the deceased more probably struck upon some of these obstructions than that he somehow cleared them all, and, if he did so, he ought reasonably to have inferred either that he was getting near the line of chains, supposing that he knew what work was going on, or, supposing that he did not, then that he had got on to ground in a condition wholly unusual and strange, and had better sit down and wait or shout for direction than go striding on, confident that, wherever he was and wherever he went, there would be a chain in position to keep him safe.

Evidence was given to show that this chain had been down for some days. This rather goes to increase the probability that a prudent workman would not rely on a chain always remaining in position or always being promptly replaced, but, for the rest, I think it is irrelevant under the circumstances of this case. If the Board is liable, it is liable because the chain was not up at the time when the deceased approached the edge of the quay. The Board is none the more liable to his widow because the chains were not up

when he was not there, and none the more, whether the omission to put it up was long or short.

My conclusion is that there was no trap, because in the deceased's place a reasonable man would have known that, such as it was, the danger was one to be reckoned with. That the odds were against the deceased's hitting off the precise gap in the line of chains no more helps the respondent than it does the appellants. The danger was one, of which a reasonable man had expectation or notice sufficient to have enabled him to avoid any evil consequences arising from it. I do not think it necessary to go through the cases, for the principle involved is familiar and only the application is contentious, but I think Lord Selborne's reasoning in Walker v. Midland Ry. Co. (1) strongly supports the above conclusions. I would like to add that, if I have not dwelt on the melancholy circumstances of this accident, it is not that I am not sincerely sorry for the widow or that I mean in any way to blame the deceased, but merely that, in a question of law, which is not without its difficulties, I only find myself embarrassed by considerations distressing in themselves, which every lawyer knows to be logically irrelevant.

My Lords, Branson J. was not satisfied that the deceased met his death because the chain was down. We need not consider whether this conclusion should be left undisturbed. I agree that the question is open to review, nor should I go further than to say that, if the learned trial judge declared that the plaintiff's evidence did not satisfy him of a conclusion essential to be proved by the plaintiff, I should give earnest consideration to his doubt before adopting an opposite conclusion. I think, however, that in justice to him it is worth while to recall how little we actually know in this case, as distinguished from what we may conjecture. The deceased told two men that he was going to the latrine; why he did so I cannot imagine, since it was none of their business. He was lost in the fog, and was not seen alive again. Whether he had any further purpose; whether he relieved himself in the

(1) 2 Times L. R. 450; 55 L. T. 489.

darkness on finding that he had missed his way, and then went on for some unknown, though not impossible, reason of his own; whether he passed through the gap unconscious of being in the line of the chains at all, or was near enough to either stanchion to know where he had got to, but proceeded, thinking that he had now got his bearings again; whether he fell into the water in trying to follow the line of stone paving along the quay edge, or because he had no idea how near the water was; whether he ever caught sight of either of the lamps, which would lie near his route, if he went straight from the shed door to the quay - these and many other such things are beyond our knowledge. I doubt if one view of any one of them is really more probable than another. It is not a case of the accident speaking for itself. The chains are about twelve feet from the water's edge. The gap in the chains and the fall into the water, at least twelve feet - four or five strides - beyond it, have to be causally connected by just inference from the plaintiff's evidence, and, for my part, I am not surprised that the learned judge was not satisfied that this connection was made out.

My Lords, I should allow the appeal.

LORD BUCKMASTER (read by LORD SHAW OF DUNFERMLINE). My Lords, I am unable to agree with the view expressed by Branson J. and by Atkin L.J. that it is a pure conjecture as to the way in which Albert Procter met his death on December 9, 1920. I think the circumstances established by the evidence are sufficient to warrant the reasonable inference that the disaster arose by his walking across the quay for a perfectly legitimate purpose, missing his way in the fog, and passing through the gap where the chains were down that fenced the quay from the water. Upon this view the Court of Appeal are unanimous that liability would be established, and the question is whether the appellant has succeeded in showing that they were wrong. I do not think he has.

I refer, for the purpose of this opinion, to the statement made by Lord Selborne in the case of Walker v. Midland

Ry. Co. (1) It is the nearest case in point, and the guiding principle laid down must be accepted. In that case, as in this, the accident occurred to a man lawfully upon the premises by invitation.

The facts were these: a guest at an hotel in search of a lavatory at night entered a room, and fell down the well of a service lift. Lord Selborne stated the duty of the hotel proprietors in these words: "The duty must, I think, be limited to those places into which guests may reasonably be supposed to be likely to go, in the belief, reasonably entertained, that they are entitled or invited to do so." In the present instance, there was a dense fog. The distance from the shed to the place where Procter fell into the water is in a straight line about eighty-five yards, and away from the place to which he was going. The difficulty is in determining what are the limits of the area within which a man might reasonably be expected to be in such a spot as this quay during a dense fog. It is impossible to reconstruct in the light all that may happen in the darkness. I recognize that Procter must have crossed the rails and that if these were once crossed on the western side he was off his track, but in the fog every sense is obscured, and I find it difficult to believe that a man must necessarily have known that he crossed the rails at the point opposite the shed, or, even if he did, that it was easy for him to get back, or that it was unreasonable to expect in the circumstances that he might wander where he did.

In these cases it must always be a matter of degree. Had the quay been narrower so that the water was nearer to the railway, there would, I apprehend, be little doubt of the liability of the defendants. The actual distance does not seem to me so great as to affect their liability. The matter is one of considerable difficulty, but I should have answered the question put by Lord Selborne in favour of the respondent, and I am fortified in this opinion by the knowledge that that also is the view of the members of the Court of Appeal.

(1) 55 L. T. 489, 490; 2 Times L. R. 450.

LORD CARSON. My Lords, I am of opinion that this appeal should be allowed.

The principle of law applicable is clearly laid down by Lord Selborne in the case of Walker v. Midland Ry. Co. (1) already referred to. "This is not a question of any 'act' done by the respondents; it is one of alleged neglect or default. Wrongful neglect or default there could not be, unless a duty, which was not performed, was previously owing by the respondents towards the plaintiff's husband, or towards persons in the same situation, in respect of the place where the accident happened." In the present case I can find no such duty. It was not contended that the defendants were under any obligation to erect or maintain fences round the dock, but it is argued that having erected the stanchions and the chains the absence of the chain in this particular place constituted an unusual danger and was quoad the deceased something in the nature of a trap. In other words, as I understand the argument it amounts to this, that the deceased being employed on a ship lying in the East Float at Birkenhead, finding himself involved in a fog and losing his way, was reasonably entitled to assume, and did assume, that the chains everywhere attached to the stanchions would be in their proper places, and that he could therefore proceed to wander over the locus in quo with the expectation of finding such chains as a protection from falling into the water. As regards the appellants, on the other hand, the question I think is, ought they reasonably to have anticipated that a man or men working in the East Dock, as the deceased was, might, if a fog arose, take the risk of wandering over the promontory under a reasonable belief that he or they could rely upon the chains affording him or them protection? My Lords, I so entirely agree with Lord Sumner in his analysis of the facts so far as we know them, and of the tests to be applied in forming a judgment on the question of reasonableness, that I think it is unnecessary for me to attempt to recapitulate them. In the words of the noble Lord, "My conclusion is that there was no trap, because in the deceased's

(1) 55 L. T. 489, 490; 2 Times L. R. 450.

place a reasonable man would have known that, such as it was, the danger was one to be reckoned with."

My Lords, I should like also to express my concurrence with the views expressed by Atkin L.J. on the finding of Branson J. that he was not satisfied that the deceased met his death because the chain was down.

My Lords, I do not doubt that this House has the right to find the fact proved which the learned judge thought was not proved, but in a case such as this where so little is proved and so much is left to conjecture, I cannot but think that the conclusion of the judge was justified and reasonable, and I should certainly be very slow to reverse it unless I had a very clear conviction in my own mind, which I have not, that the fact was satisfactorily proved.

Solicitors for the appellants: Rawle, Johnstone & Co., for W. C. Thorne, Liverpool.

Solicitors for the respondent: Helder, Roberts, Giles & Co., for J. A. Behn, Liverpool.