Case No: B3/2001/2090
Neutral Citation Number: [2002] EWCA Civ 540
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LINCOLN COUNTY COURT
His Honour Judge Krikler
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Wednesday 24th April 2002
Before :

LORD JUSTICE SCHIEMANN
and 
LORD JUSTICE CARNWATH

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Between :

	OXLEY PLUMBERS MERCHANTS	Appellant	
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	(1)	IAN KERRY DAVIES
(2)	SBG FELT ROOFING	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr S Gash (instructed by James Chapman & Co) for Oxley Plumbers Merchants
Mr P Kirtley (instructed by Ilett & Clark) for Ian Kerry Davies
Mr J Pendlebury (instructed by Browne Jacobson) for SBG Felt Roofing

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Carnwath : 
1.	This is the judgment of the Court.  The claimant, Mr Davies is the tenant of a maisonette on the third and fourth floor of 126A Bridge Street, Worksop.  The landlords are Mr and Mrs Oxley.  The tenancy agreement was subject to the National Letting Provisions (Residential) 1989 whereby the landlords covenanted to keep the roof, main walls and structure of the property in good and tenantable repair and condition.  There is a roof patio at second floor level, access to which is gained through a door from the kitchen.  The patio is of wooden construction, surfaced with asbestos composite tiles, bedded in bitumen on layers of roofing felt.  The patio was constructed by Mr Oxley some fifteen years ago.  At the time he arranged to have a trap-door placed in the roof patio for the purpose of being able to haul up ladders and so on for the purpose of maintenance.  The trap-door was covered with tiles and was flush with the floor of the patio.  When removed it opened onto a shaft that went down to ground level, some 15-20 feet below.
2.	The present litigation arises out of an accident in November 1996 when Mr Davies fell through the trap-door and injured himself seriously.  He seeks damages from Mr and Mrs Oxley.  They in turn have sought a contribution from a company called SBG Felt Roofing Company Limited (“SBG”), who were instructed in November 1996 to carry out repairs to the roof. 
3.	The background is as follows.  By the early 1990s the patio was beginning to show signs of deterioration, and some of the tiles were coming loose.  Mr Davies drew these problems to the attention of Mr Oxley, who referred them to his normal builder, Sidney Brown Construction, a firm of which Mr Paul Shepherdson was the proprietor.  In September 1996 Mr Oxley visited the premises following a further complaint from the claimant about the tiles.  He inspected the patio and also stood on the trap-door, which he noticed was “spongy”.  He recognised that it would need further investigation.  On 3rd October 1996 he obtained a quotation from Mr Shepherdson for the cost of stripping the patio and re-laying the tiles.  The quotation said nothing about the trap-door, but, when he received it, Mr Oxley orally asked Mr Shepherdson to investigate the state of the trap-door and report back.  Mr Shepherdson sub-contracted the work of stripping the patio and re-laying the tiles to SBG.  
4.	On Friday 8th November Mr Andrews and Mr Eyre, employees of SBG, visited the premises to carry out this work.  They had no instructions to deal specifically with the trap-door.  However, they lifted the trap-door and found that it was “somewhat defective” (to use the Judge’s expression; we shall need to return to the evidence on this aspect below).  They told Mr Davies that the work of re-laying the tiles could not be completed until a joiner had attended to the trap-door.  They replaced the trap-door in its hole.  They did not specifically warn Mr Davies of the nature or extent of the defect.  According to them, this was because they understood him to be well aware of the risk.  (Again we shall need to return to this point).  On Monday 11th, Mr Davies went on to the patio to clean off surplus globules of bitumen that had been left after the roofing tiles had been laid.  In the course of the work, he moved on to the trap-door which gave way, and he fell into the well below.
5.	The present proceedings were begun in November 1999.  In April the following year permission was given to the defendants to issue proceedings against the Part 20 defendant, SBG.  Liability was directed to be tried as a preliminary issue.  This came before His Honour Judge Krikler at Lincoln County Court on 13th and 14th August last year.  The Judge upheld the claim against the defendants, without any deduction for contributory negligence, and he dismissed the claim against the Part 20 defendants.
6.	The hearing before the Judge fell into two parts.  The parties had agreed that a critical issue was Mr Davies’ state of knowledge on 11th November.  It was common ground that, if as SBG contended, the claimant Mr Davies was well aware that the trap-door was so rotten as to be a serious hazard, he would have no claim against anyone.  It was therefore agreed that the Judge should be asked to decide the issue of his knowledge as a preliminary matter, before going on to deal with the consequences of that.  On this point there was a direct conflict between the evidence of Mr Davies, and that of Mr Andrews and Mr Eyre, on behalf of SBG.  Their evidence was that Mr Davies was already fully aware of the condition of the trap-door when they arrived, and had indeed warned Mr Andrews that it was rotten and would give way if he stepped on it.  Further, they said that when they left, he told them that he would protect the trap-door by placing a dustbin over it.  Mr Eyre said that he saw the claimant moving the dustbin into position.  
7.	On this aspect the Judge’s conclusions were entirely favourable to Mr Davies.  He regarded Mr Davies as “a very impressive witness” who gave his evidence “in a frank and forthright way”, and also as a “very responsible gentleman”.  Where there was a conflict between Mr Davies and the other witnesses, the Judge accepted the evidence of Mr Davies.  He was not the sort of person who, had he known of the danger, would have allowed members of his family to make use of the roof without restriction.  He knew that there was a need for repair to the roof, and had informed Mr Oxley to that effect, but not that the trap-door was an imminent danger.  The Judge saw no reason to “saddle him with a greater knowledge than Mr Oxley” who had found the trap-door to be “spongy” but not an imminent danger.  Accordingly he did not find that Mr Davies had such knowledge as would disqualify him from making the claim.  
8.	Up to this point in his judgment, the Judge had not commented in detail on the conflicting evidence of the SBG employees.  He had made it clear that he preferred that of Mr Davies.  He commented that Mr Eyre could add little to the matter because he spent only a minute or so on the roof.  As to Mr Andrews he said -
“This was not a matter of the utmost moment to Mr Andrews.  He was there doing a job, and no doubt this was one of many jobs that he would do in the course of that year and subsequent years as well.  From Mr Davies’ point of view this was very much a matter of enormous importance and it was a one-off....”.
9.	Having, as he thought, concluded his judgment on this aspect, the Judge was asked by Mr Pendlebury, for SBG, to clarify two points. (So we were told.  The questions do not appear in the transcript).  The first was the SBG employees’ evidence about the dustbin.  As to that the Judge referred to Mr Davies’ evidence in cross-examination, in which he said: 
“To have placed a dustbin on the trap-door would have been crass and absurd, irresponsible to my family”.
The Judge accepted that evidence, and accordingly that Mr Davies would not have placed a dustbin on the trap-door as a safety measure.  The second point was the nature of the claimant’s previous conversations with Mr Oxley.  On this point the Judge said –
“I do not think that at any stage Mr Davies said to Mr Oxley, or to anybody else, that this trap-door was rotten and constituted an immediate real substantial danger, that it certainly was like the roof itself, deteriorating and needed repair and perhaps some investigation and possibly some additional work apart from having the tiles re-laid, because the trap-door, of course, itself had the felt and bitumen tiles on it.  It may well be that there was some indication that the trap-door should be looked at as well from the point of view of its structure as well as the decorative state of the top.  But that is as far as I think I can take it.”
Thus, it appears that the judge was qualifying Mr Davies’ evidence to this extent, that it was likely that there would have been at least some discussion on the state of the trap-door.
10.	Having reached this conclusion on the first issue, the Judge then heard further evidence and submissions on the other issues relevant to liability.  Later on the same day, he gave judgment on these aspects.  He held that Mr Davies was entitled to succeed against the Oxleys, both under the terms of the tenancy agreement, and under section 4 of the Defective Premises Act 1972 (before us nothing has turned on the precise terms of, or differences between those two heads of liability).  His finding against Mr Oxley was based on a number of factors.  He himself had designed the patio including the trap-door and was well aware of the substantial drop below it.  He was aware that remedial work needed to be done to make the trap-door safe.  He should have taken “instant steps” to have the necessary remedial work done.  Instead what he had done was simply to ask Mr Shepherdson to investigate and report back.  Mr Shepherdson’s quotation had not mentioned the trap-door.  At the very least Mr Oxley should have asked him specifically to remedy any defects found in the trap-door.  That should have been done, in the Judge’s view, before 3rd October when Mr Shepherdson’s quotation was received.
11.	The Judge then considered whether any deduction should be made for the contributory negligence of Mr Davies, a question which he said was “not an easy one”.  The defendants submitted that, even accepting the Judge’s findings as to Mr Davies’ state of knowledge, Mr Davies was aware that the trap-door was defective.  In these circumstances it was negligent for him to use the patio in the way he did on the Monday.  When cleaning off the surplus bitumen, he had started from a point away from the trap-door and moved backwards towards the trap-door.  In cross-examination by Mr Pendlebury, he had conceded that with hindsight he would have started the other way.  Had he done so he would have been likely to avoid going on to the trap-door.  The Judge saw the “attractions” of that submission, but rejected it:
But when one considers it in depth it seems to me that the state of knowledge that I have found existing in Mr Davies’ mind was one where he did not appreciate that this was quite the danger that it was.  He thought it was a defective situation that needed to be looked at and put right, because no doubt it would be a potential danger if not remedied, but at that stage I do not think he thought that this was necessarily a real and present danger of the nature that it turned out to be.”
12.	By contrast, Mr Oxley had “a statutory duty that falls upon him to use foresight rather than hindsight”.  He had a duty to make sure, once he was aware of a defect, that it was remedied in such a way as was reasonable in the circumstances: 
“Because of the peculiar nature of this particular structure, and because of his inside knowledge, ..... of the way in which it had come to be constructed and the real hazard of that trap-door being a cover over a very substantial drop, the reasonable steps in all the circumstances that he should have taken were to see that that was also put right, that the hazard ceased to exist.”
Accordingly, he held that the defendants were wholly responsible for the accident as between them and Mr Davies.  
13.	Finally he turned to the position of the Part 20 defendant, SBG.  As he said, SBG came into the matter as sub-contractors, and had no direct contract with Mr Oxley or Mr Davies.  Thus the claim could only be based upon breach of a duty of care in negligence.  They had come to the premises to do a particular job, defined by their contract with Mr Shepherdson, which did not involve work to the trap-door:
“They did discover on arrival, and on looking at it, that there were also defective tiles on the trap-door.  They also ascertained that the trap-door certainly seemed to be somewhat defective.  But, again, they would not have expert knowledge of the nature and precise hazard of that defect.  All they would know is that there would be some work required by somebody who had a skill that they did not have – in other words, a joiner, who would be required to do some woodwork on that trap-door to make it safe – and that until that work had been done there would be little point in their actually working on the surface of the trap-door.  So what they did was to put the bitumen on the rest of the patio, to re-lay all the other tiles but to leave the trap-door in abeyance, as it were, so that they would come back once the joinery that was required had been carried out.  I accept Mr Pendlebury’s submissions that they were not joiners, they were not structural engineers, it was not really for them to have expert knowledge of the precise hazard that this defective trap-door constituted, and I think it would be very hard indeed to saddle them and to burden them with the sort of duty that is required in a situation where they were fully aware of the precise nature of the hazard.”
Accordingly he rejected the Part 20 claim.
14.	In this court the proceedings have taken a slightly unusual course.  The defendants did not seek to appeal against the judgment in favour of Mr Davies, since they accepted, as we understand it, that the issues were ones of fact on which the Judge had formed a view having heard the witnesses.  They did however seek to challenge his decision dismissing the Part 20 claim.  Permission was granted by Robert Walker LJ on 12th October.  By a respondent’s notice dated 30th October, SBG sought to uphold the Judge’s decision as between them and the Oxleys.  However, on the basis that this court might find that they shared some of the responsibility, they sought to attack the Judge’s conclusions on the issue of contributory negligence as between Mr Davies and the Oxleys.  The matter was put thus:-
“Only in the event that the court were minded to accept (on the basis of the learned Judge’s findings) that the respondent owed the duties of care contended for by the appellant, does the respondent contend:-
(i) that the learned Judge failed to make any finding of fact concerning what Mr Andrews’ belief was with respect to the claimant’s state of knowledge about the trap-door and whether any belief held was reasonable in the circumstances;
(ii) that the learned Judge was wrong in law and fundamentally erred in his approach to the conflict of evidence between the claimant and the other witnesses who gave evidence;
(iii) that the learned Judge was wrong in law not to find the claimant guilty of contributory negligence.”  (grounds of appeal para G).
15.	They applied for permission to pursue this challenge.  (Mr Pendlebury told us that he did this on “a pragmatic basis”, without necessarily accepting that permission was in fact required under the relevant rule).  When this came before Robert Walker LJ, he raised the question whether it was open to SBG to challenge the findings on contributory negligence, given that they had not been defendants as such to Mr Davies’ claim.  Following correspondence with SBG’s solicitors and the court, he ordered on 22nd November that the issue of permission should be adjourned to be heard on notice, with the appeal to follow if permission were granted.  He commented that there might be need for argument about the scope of any permitted appeal, in particular whether the damages awarded to the claimant could be reduced.  He directed that the claimant should be given notice of the hearing and should be permitted to put in a skeleton argument and “take such part in the argument as is permitted by the court hearing the appeal.”  Mr Kirtley, on behalf of the claimant put in a skeleton dated 10th January, in which he argued that the Part 20 defendants had no locus to mount an appeal against the findings of the main action, and that in any event the challenge was no more than an attempt to rehearse issues of fact which had been decided by the Judge on the evidence.  
16.	Up to this point there had been no suggestion by any party that the finding of 100% liability in favour of Mr Davies should be disturbed.  However, by a supplementary skeleton dated 22nd February, Mr Gash, for the Oxleys, sought permission to extend his grounds of appeal to challenge the Judge’s findings on contributory negligence by Mr Davies.  However, he only sought to do this to the extent that Mr Pendlebury, for SBG, was successful in persuading us on this aspect of his case.  As he explained the position to us, Mr Gash stood by the position, reflected in his original notice of appeal, that he had no arguable grounds of appeal against the Judge’s decision in favour of Mr Davies.  However, he felt it his duty to his client to ensure that, if Mr Pendlebury were to persuade us otherwise, the Oxleys would have the benefit of that finding.  At the hearing before us, we indicated that we would deal with any questions of permission at the end of our judgment and in the meantime hear argument on all the issues and potential issues raised by all the parties.
17.	We start with the appeal of the Oxleys against the judgment in respect of SBG.  This arises under the Civil Liability (Contribution) Act 1978, on the basis that SBG was a person who, if sued by the claimant, would have been liable to Mr Davies in respect of the same damage.  It is common ground that any cause of action would have been in negligence, under the familiar principles as stated in Donohue –v- Stevenson [1932] AC 562, 580 and Caparo Industries plc –v- Hickman [1990] 2AC 605, 617.  Mr Gash submits that on the evidence, in particular that of Mr Andrews and Mr Eyre, the Judge was bound to hold that SBG were in breach of a duty of care owed to Mr Davies, and that their breach was causative of his accident.  
18.	In particular, Mr Gash says that the Judge over-stated the expertise which was required to assess the state of the trap-door.  The Judge said that the SBG employees would have known that the trap-door was defective but “would not have expert knowledge of the nature and precise hazard of that defect.”  Later he accepted Mr Pendlebury’s submission that “it was not really for them to have expert knowledge of the precise hazard”.  Accordingly they should not be burdened with the duty that would be required in a situation “where they were fully aware of the precise nature of the hazard.”
19.	Mr Gash contrasts this with the actual evidence of Mr Andrews.  In his witness statement dated 15th September 2000 he said this:
“With regard to the state of the trap-door, it was clear to the naked eye that it was rotten and unsafe.  It did not need a qualified joiner to establish that fact.  Having said that, I am a very experienced roofing felter and I often come across rotten wood.  I believe that because of my experience in this business, I am qualified to judge whether the wood is rotten or not.”
Similarly in cross-examination he confirmed his view that the trap-door “was rotten and wouldn’t support anyone’s weight”.  He also accepted that he had not taken any specific steps to ensure that neither Mr Davies nor any member of his family would have come to grief as the result of walking on the trap-door.  His explanation was that he understood that Mr Davies would put a dustbin over the trap-door to prevent anyone walking upon it.  If he had not understood that Mr Davies was going to cover the trap-door, he would have telephoned his employer and “he’d have sorted a joiner out or something that afternoon to make it secure so that if anybody did walk on it then it was perfectly safe.”  
20.	Mr Eyre’s evidence was to similar effect.  He also said that he understood Mr Davies was going to put a dustbin over the trap-door.  Otherwise they would have taken some other steps such as using red warning tape which they had in the van.  Their case was, not that they did not know the full extent of the hazard, but that Mr Davies himself had pointed it out to them, and that it was he who was going to make sure that it was protected.  It is fair to note that this view of the matter was recorded on the day of the accident, in a letter from SBG to their insurance agents drawing attention to the accident.
21.	As we have seen, the Judge did not accept that part of the evidence of SBG’s employees.  He accepted Mr Davies’ evidence that he was not aware of the extent of the hazard, and that in any event he would not have dreamt of putting a dustbin as a form of protection.  On the face of it this left SBG exposed to the conclusion that, on the evidence of their own witness, their employees had been fully aware of the extent of the danger and had not taken the steps which they would normally have regarded as appropriate.  
22.	Against that background, there is clearly force in Mr Gash’s submission that the Judge has not, at least in terms, given full weight to the effect of Mr Andrews’ evidence.  On the other hand, he was right, when considering the extent of any duty of care owed by SBG to Mr Davies, to draw attention to the limited nature of SBG’s role.  They were not there to inspect or repair the trap-door.  They discovered the defective nature of the trap-door in the course of their work on the tiles and realised that something would need to be done about it.  But Mr Davies  was also aware of that.  Whatever the state of his knowledge before 8th November, there is no dispute that he became aware that the trap-door was defective when the SBG workmen removed it.  
23.	He himself gave evidence of a conversation on the patio, between him and the workmen, where they told him that they had managed to remove the trap-door and that it was damaged and in need of repair.  According to the transcript, he said this: 
“Very little was said about the trap-door, but when they managed to remove it, because it had been held together with expanded damp timber and bitumen, that the lip was to some extend rotten and would need replacing, as were the edges of the trap-door.  But this is nothing new.  It hadn’t just happened that day”.  
At the time of that conversation, the trap-door was leaning against the wall and was therefore visible.  Later in his evidence he seems to have wanted to qualify the use of the “rotten”.  But it is clear that, once the trap-door had been opened, he became aware that there was “some long-term damage to it”, and that he was able to see the extent of that damage himself.  
24.	Seen from Mr Andrews’ point of view, therefore, Mr Davies was fully aware of the nature of the problem and the need to do something about it.  If the matter had stopped there, it is difficult to see how SBG could have been under any duty of care to Mr Davies.  They were not responsible for the repair of the trap-door, and Mr Davies was as well able as they to take steps to ensure that it was dealt with.  
25.	The matter is complicated by the conflict of evidence as to what in fact was said about dealing with the problem.  On the issue of the dustbin the Judge accepted Mr Davies’ evidence and rejected that of the SBG employees.  Yet there is no suggestion that he regarded Mr Andrews as dishonest.  The implication is that he preferred Mr Davies’ evidence because this was a “one-off” case for him, whereas it was one of many for Mr Andrews, who therefore had no particular reason to remember it.  (He does not explain how he reconciled this view with the fact that Mr Andrews’ account was recorded by SBG in a letter on the same day).  
26.	In any event, it is significant that Mr Davies himself does not seem to have regarded it as SBG’s responsibility to do anything about the problem.  He accepted in evidence that it “wasn’t their function”.  His understanding was that they would “refer back to their superior who would probably in turn refer the matter to Mr Shepherdson, who was in overall charge of the job”.  Indeed it is noteworthy that at no time does Mr Davies seem to have blamed the SBG employees for his accident.  This suggests that he accepted that he and they were equally able to judge the position in the light of what they could see of the trap-door once it had been opened.  We now know, in the light of the evidence and the judge’s appraisal of it, that Mr Andrews’ assessment of the extent of the danger was more serious than that of Mr Davies.  However, it was not part of Mr Andrews’ responsibility to assist Mr Davies to make any such assessment, and there is no evidence that Mr Davies relied on him to do so.  
27.	In these circumstances, although there is force in the complaint that the Judge underplayed the extent of Mr Andrews’ expertise, it does not in our view undermine his conclusion that no duty of care, in the legal sense, arose between SBG and Mr Davies.  Accordingly, the appeal against the Judge’s decision on the Part 20 claim must fail.  In these circumstances it becomes unnecessary to consider Mr Pendlebury’s wider grounds of attack on the judge’s conclusions in relation to contributory negligence.  We do not need therefore to express a view on the point, which concerned Robert Walker LJ, as to whether he should be permitted to challenge a part of the judgment on the claim to which he was not a party.  It follows also that we do not need to consider Mr Gash’s application for permission to appeal against that part of the judgment.  
28.	In conclusion we uphold the judgment below.  It may seem somewhat harsh that in the result full liability should fall on the one party, who had not seen the full extent of the damage after the trap-door had been opened.  However, Mr Oxley had been aware since September 1996 that the trap-door was “spongy” and needed remedial work.  It was his responsibility under the Act and the tenancy agreement to deal with it.  Had he done so promptly, the accident on 11th November would not have occurred.  The Judge was entitled to find that, in the light of the evidence overall, this failure was the operative cause of the accident.  The appeal is dismissed.  

Order: Appeal dismissed, Appellant do pay Respondents and Claimant’s costs of the appeal.
(Order does not form part of the approved judgment)