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Paul Tyrone Mann v Northern Electric Distribution Ltd [2010] EWCA Civ 141

The role of “foreseeability” in the defence of “reasonable practicability”.

The Court of Appeal has recently given judgment in the case of Mann v Northern Electric Distribution Limited in which Christopher Purchas QC and Peter Morton appeared for the successful respondent. The appellant sought damages for severe personal injuries sustained when he scaled the wall of the respondent’s 66,000v sub-station and once inside climbed upon a transformer where he was electrocuted. His claim was brought under the OLA 1984 and the Electricity Supply Regulations 1988.

The Court at first instance found that the means of access employed involved using timber to climb upon a palisade fence located at right-angles to the sub-station perimeter wall and then using a further “makeshift ladder” to gain additional height from which to climb upon a small unguarded area located on top of a buttress forming part of the 4.1 metre wall. It was held that this means of access as a whole was not reasonably foreseeable with the result that the claim under the OLA 1984 could not succeed. The appellant contended that the Regulations (which stipulated for a 2.4 metre wall) had been breached because of the presence of the palisade fence produced a situation where the effective height of the wall was reduced to below that required. The Court at first instance rejected the claim under the Regulations on the basis that whilst climbing on the palisade was foreseeable, the risk of someone using a further “makeshift ladder” was “a step too far” and was so unlikely as to be unforeseeable, with the result that the respondent did discharge its duty to encase the sub-station by a fence not less than 2.4 metres high to prevent so far as was reasonably practicable, danger of unauthorised access. Specifically, the Court below accepted the respondent’s submissions that when considering reasonable practicability, the Court had to take into account “foreseeability” in the sense of the likelihood of the risk of entry occurring – see Austin Rover Group v HM Inspector of Factories [1990] 1AC 619.

The grounds of appeal as argued were that (a) the Court below was wrong to find that the use of the “makeshift ladder” was unforeseeable, with the result that the respondent could and should have taken the simple and inexpensive step of guarding the top of the buttress and (b) that the perimeter wall was not 4.1 metres tall because of the presence of the palisade fence. The respondent’s cross-appeal that the Regulation was concerned with the height of the wall alone was rejected, but the Court of Appeal refused to interfere with the conclusion of the Court below that the second stage of the climb was not foreseeable, and rejected the argument that the wall was not after all 4.1 metres tall.

The Court of Appeal found that the Court below correctly approached the defence of “reasonable practicability”. The case represents useful confirmation that when faced with a “strict” liability subject only to a defence of reasonable practicability, the defendant will do well to ensure that the Court is asked to consider the question of whether the defendant has done all that it reasonably practicable by reference to what it ought to have foreseen at the time of the matters complained of. If, as here, the mechanism of injury was not foreseeable, then the defendant is not in breach of a duty to guard against it.

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