Second Round Problem (Moot of 2000/2001)
Wink v. Slope
The Court of Appeal (Civil Division)
Belinda Slope owns Marigold House, Southumberland. Marigold House has a garden which ends on the edge of a cliff, some 15 metres high, which is protected by a brick retaining wall incorporating steps and two terraces. The cliff descends to Hanger Cottage, which belongs to Lesley Wink. In 1853 both properties had been owned by a Mr Myster. He later sold the house while retaining the cottage and the terraces. Later still, he sold the cottage but the terraces were apparently not included in the sale. It has not been possible to ascertain the present legal owner of the terraces. Mrs Slope and her late husband bought Marigold House in 1960. She is now an 80-year-old widow of considerable means. Ms Wink, a single mother with modest means and aged 43, bought Hanger Cottage in 1993. She assumed that the terraces belonged to Mrs Slope and asked if she minded if she used them. Mrs Slope replied that she wanted nothing to do with the terraces and that Ms Wink was "welcome to them". Accordingly Ms Wink started to use the terraces, weeding them and installing garden seats. In 1996, the terraces showed signs of subsidence and Ms Wink carried out a certain amount of re-pointing on the brickwork. However, the situation gradually deteriorated. Eventually a major collapse seemed likely which could severely damage both Marigold House and Hanger Cottage near the foot of the cliff. In 1998, Ms Wink fenced off the foot of the cliff and has not been on the terraces since. She wrote to Mrs Slope suggesting that they share the cost of the engineering works necessary to secure the terraces. The work will probably cost around £40,000. Ms Wink stated that she was in a position to provide £20,000 but that if she had to raise more she would be obliged to sell her cottage. Mrs Slope replied that she had never owned the terraces and that she was not prepared to help. She then sought 1) a declaration that she had no legal responsibility for the state of the terraces and 2) a mandatory injunction requiring Ms Wink to carry out the required remedial work on the terraces so as to prevent subsidence to Marigold House.
Granting the declaration and the injunction sought, Toddle J at first instance held that Ms Wink had assumed the responsibilities of an occupier of the terraces. This included an obligation to protect neighbours from a dangerous condition which had arisen on the land and which was known to her whilst she was in occupation. On the basis of Leakey v National Trust [1980] QB 485 and Holbeck Hall Hotel Ltd v. Scarborough Borough Council (No. 2) [2000] 2 All ER 705, Ms Wink was legally responsible to guard against any harm which might be caused to Mrs Slope's land as a result of the dangerous condition of the terraces. Toddle J ordered Ms Wink to pay for all the necessary works.
Ms Wink now appeals on the following grounds:
1. Ms Wink's use of the terraces did not constitute legal occupation, nor did it make her liable for any danger arising from the terraces. In any event, Ms Wink was no longer in occupation and therefore could not be held responsible for remedying a condition which she had not created or made worse and which had not actually caused harm to anyone.
2. If she was responsible for remedial work on the terraces, on the basis of remarks made in Leakey v National Trust [1980] QB 485 and in view of her limited means, Ms Wink should not be required to contribute more than the £20,000 which she had offered to provide towards the necessary remedial works. It would be unreasonable and excessive to require Ms Wink to sell her home in order to generate the funds needed to shore up Mrs Slope's garden.
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