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Judicial Law Making In The Channel Islands

Jason Morgan

A recent Guernsey Court of Appeal judgment has potentially far reaching implications for both Guernsey and Jersey. The state of the law in both jurisdictions on occupier’s liability was considered by the Court of Appeal in the lengthy judgement delivered this year in Morton v Paint [6]and may therefore be of interest to Guernsey and Jersey lawyers alike.

The facts relate to an accident that took place in June 1987. The defendant was the owner of premises in St. Peter Port comprising a shop on the ground floor and residential flats above. M was the tenant of one of the flats and the plaintiff was M’s girlfriend at the time. The plaintiff was severely injured when she fell through a window on the common staircase of the property into the yard below. She was almost totally paralysed from the waist downwards.

In May 1990 an action was commenced by the plaintiff in which damages in excess of £232,000 were claimed. The plaintiff’s claim was founded on the defendant’s liability as occupier/landlord for allowing the window to be such as to permit a person such as the plaintiff to fall through it.

A preliminary point was taken by the defendant that no cause of action existed. The Deputy Bailiff of Guernsey in his judgement delivered on 22nd May 1995 ruled:

1. that the common law of Guernsey in 1987 as regards the obligations of landlords to users of common parts of premises visiting tenants was the same as the common law of England and Wales in 1956, that is, before the Occupier’s Liability Act 1957 ("the 1957 Act");

2. that the common law of England and Wales in 1956 was such that the plaintiff would be regarded as being no more than a licensee vis à vis the landlord and that was the common law position in Guernsey in 1987;

3. that the duty owed by a landlord to such licensee under the current common law of Guernsey in 1987 was confined to a duty not to expose that licensee to a danger not obvious or to be expected in the circumstances, that is a "trap";

4. that the common law of Guernsey in this regard had not developed since 1956 and could not be developed further by the Guernsey Court (further development being a matter for the States of Guernsey and not for the Court), notwithstanding either the statutory changes in England and Wales and in other jurisdictions or the common law developments in other common law jurisdictions (particularly Australia) since 1956.

Leave to appeal against the Deputy Bailiff’s decision on the preliminary issue was granted.

It was accepted as common ground on appeal that in tort cases Guernsey Courts would follow the decisions of English Courts on the common law, except insofar as the Guernsey law of torts is covered by Guernsey customary law or statute.

The judgment of the Court provides an interesting assessment of the development of the law in the area of occupier’s liability in England and Wales before and after the 1957 Act. It also examines the development in other common law jurisdictions, most significantly highlighting the emergence of a general duty of care principle of the Donoghue v Stevenson kind. A number of Australian cases were cited as examples. In Hackshaw v Shaw [7]Deane J. observed:

"Where the visitor is lawfully upon the land, the mere relationship between occupier on the one hand and invitee or licensee on the other will of itself suffice to give rise to a duty on the part of the occupier to take reasonable care to avoid a foreseeable risk of injury to her or him."

Three years later, in Australian Safeway Stores (Pty) Limited v Zaluzna [8]it was held on appeal by the Australian High Court that the view expressed in Hackshaw and another case represented the common law position in Australia. The ratio of the judgement was summarised in part as follows:

"It is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or both of a special duty qua occupier and a general duty of care was owed. It is necessary to determine only whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff".

The common law position in Jersey was found to take matters no further. A number of decisions were referred to including Blackwell v Carter [9]and Macrae v Jersey Golf Hotels Limited [10] . In those cases and in the absence of any local statute or customary law, English common law had been followed and applied.

The arguments advanced by Counsel during the appeal in Morton v Paint were as follows:

Counsel for the plaintiff argued that the Guernsey common law principles could and should be developed to meet changing circumstances and that such development should be based on the example of the Australian authorities culminating in Zaluzna. Counsel for the defendant sought to argue that the relevant principles of Guernsey common law remained as developed in England and Wales up to 1956 where invitees and licensees were concerned, and to 1983 in the context of trespassers [11]and that those principles should not be developed further. Any further development was for the States of Guernsey and not for the Court.

In resolving the respective merits of the arguments advanced by Counsel for both parties, the Court was necessarily obliged to consider the extent and circumstances in which judicial law making can and does take place. In so doing it conceded that where Guernsey courts were concerned the "aids to navigation" approach enunciated by Lord Lowry in C v D.P.P. [12] was the correct approach to be adopted.

The Court went on to observe that:

"The hierarchy of the Courts in Guernsey and the doctrine of precedent requires the Royal Court and the Court of Appeal to follow the decisions of the Privy Council, when hearing appeals from the Courts of Guernsey. Privy Council decisions on appeals from other Commonwealth jurisdictions are not binding but are persuasive authority on the common law where relevant circumstances in Guernsey do not differ markedly from those in the other jurisdictions".

The Court recognised that fundamental parts of Guernsey common law were not capable of alteration by judicial decision. The Guernsey authority of Singleton v Le Noury [13] (a case involving alleged rights of way arising from a Clameur de Haro) was cited as an example. The Court echoed the dicta of the Court of Appeal in that case when it observed:

"That case concerned the property law of Guernsey. Longstanding and fundamental principles of property law could not be overturned by a judicial decision today."

However the Court distinguished between such "longstanding and fundamental principles" and the development of the Guernsey law of tort, the basis of which was to a large extent English judicial decisions on the common law.

The Court conceded as very relevant the kind of criticism that the English common law had received immediately prior to the enactment of the 1957 Act. This the Court felt militated against any "ossification" of the Law in its pre-1957 state. The Court concluded that it was right for it to continue to develop the common law on occupiers liability in Guernsey "in a way which is consonant with the needs of the Guernsey community". This conclusion was based on the following factors:

1. The pre-1957 English common law on occupier’s liability was not in a state consonant with the needs of a modern community. It was uncertain and had been justifiably criticised at the time. Statutory change had been necessary in England and Wales to remedy the defects in the law.

2. The pre-1957 common law on occupier’s liability was not fundamental and lacked clear principle. It was therefore capable of judicial development provided that the "aids to navigation" criteria were met.

3. The application of the Donoghue v Stevenson duty of care principle in this area provides finality and certainty which the law had previously lacked.

4. Development of Guernsey Law along the lines of Zaluzna will meet the "aids to navigation" criteria. No action has been taken by the States of Guernsey in any area of the law relating to occupier’s liability. Social circumstances relevant to occupier’s liability to visitors do not differ materially in Guernsey to those elsewhere.

5. To allow the law to remain in its unsatisfactory pre-1957 state was not in the interests of those who live in Guernsey or their visitors.

Having reached the conclusion that Guernsey law should be developed along the lines of the principles in Donoghue v Stevenson and Zaluzna the Court went on to allow the appeal. In so doing it expressed the view that the duty of care owed by the plaintiff to the defendant amounted to "a duty to have done what a reasonable man would have done in the circumstances by way of response to the risk, in so far as foreseeable, in accordance with the Donoghue v Stevenson principles of the law of negligence".

Jason Morgan is an advocate of the Royal Court of Guernsey and a partner in Ferbrache & Co., PO Box 212, Hadaley House, Lefebvre Street, St. Peter Port, Guernsey