No, sorry you can’t slide down the banisters: law, brass nodules and unauthorised alternative uses of the built environment

 “…occasionally a noisy clattering down the stairs agreeably broke the silence, as a student slid down the last flight, a species of descent much in vogue with the tenants, by which the top rail of the banisters had been worn as smooth as polished mahogany, and the mat at the bottom of the stairs lacerated in several places, by receiving the first shock of their heels when they landed in the passage.” (Punch, 1842: 215)

Sliding down the banisters has a long and cherished place within folk memory. It is recalled in whimsical terms in popular literature and memoir. This cultural resonance can also be found in the remarks of judges, most notably in the words of Lord Justice Scrutton in The Calgrath [1927] in his search for a metaphor with which to explain a fundamental principle of the English law of trespass, that permission to be present somewhere is use-specific:

“When you invite a person into your house to use the staircase, you  do  not  invite  him  to  slide  down  the  banisters,  you  invite him to use the staircase in the ordinary way in which it is used.”

Dealing with sliders:  law vs technology?

Yet, if you had a problem with people using the banister rail in an unpermitted manner it’s unlikely that your first instinct would be to seek a remedy through the courts: an injunction forbidding future trespassing uses of the staircase and its polished surfaces. No, perhaps the first instinct would be to defeat the slider by technological means.

I have here in mind small brass nodules intermittently inserted along the length of the balustrade. A simple, but effective (and potentially painful) deterrence technology. The picture here is from one of the older buildings of my University, a late Victorian hall. Evidently sliders were a problem here at some point in its past.

These nodules have caught my eye because I’ve been thinking about the role of subtle physical devices as limiters of pedestrian passage and use. The anti-slider nodule has a close relative in the anti-sitting nodule, commonly found deployed to deter posteriors from enjoying a relaxing flat surface on plinths beneath the grand archways of banks, town halls and other grand buildings which seemingly might otherwise be despoiled by the loitering recumbent. It also has an echo in the laying of jagged pavers to ‘forbidden’ parts of highway ‘central reservations’. These physical features won’t hurt, as such, but they will deter the pedestrian towards more accommodating and permitted pavements, or simply keep people moving along. They also have larger cousins in the form of bollards, and their selective urban sieve function: to block vehicles, but not to  hinder that vital free flow of pedestrians.

I would contend that these nodules and technological practices are part of law’s toolkit for pedestrian control and that they are a good example of why we need to see law as encompassing material artefacts and techniques, in addition to its obvious discursive, conceptual realm. Here I’m following enthusiastically Hogg’s call for a reorientation of legal analysis towards a more holistic approach, for:

“if we were to take the spatiality of legal practices seriously …we should cease to look upon law as a closed, formal and acontextual system and see it instead as an assemblage of heterogeneous elements, discursive, social and technical. These elements include distinctive physical structures, spatial arrangements and rituals as well as texts and rules.” (2002, 34)

And I’m not saying that brass nodules are alternatives to law – rather I am asserting that they are part of law itself. Frequently such features will be deployed under authority of legal powers (e.g. bollards) or envisaged as part of a strategy of managing something inherently legal in nature – whether property rights of fear of liability for harm otherwise caused to a potentially loitering public. To perform law’s territory forming tasks, physical artefacts will often be deployed as an expression of and/or through a process of law.

The process of selection, design and installation will be shaped (possibly instigated) by concepts or intentions of law. Building regulations, planning ordinances and highways legislation will all have their role to play. So, for example, if you are thinking of putting barbed wire close to a public highway, section 164 of the Highways Act 1980 requires you to think again…

In decades gone by, it was quite common to inset broken glass on wall-tops to deter intruders. Such technologies are now considered by law to be disproportionate. Likewise, razor wire – whilst tolerated by the law – must not be concealed and warning notices must be posted to draw attention to its presence. Since 1984, even a trespasser has a right to reasonable bodily protection against foreseeable injuries from features deployed there.

Injured sliders: who’s to blame?

But, English law does not offer trespassers protection against freely accepted risks – there is no obligation to stop banister sliders from undertaking their perilous decents (except perhaps a duty for premises owners to safeguard those bystanders who might be injured by a falling slider).

A succession of court cases over the past decade have shown that premises owners do not have legal responsibility to protect adult visitors or trespassers who seek to use the built environment in ways they were not designed or intended for (and often this logic is applied to children too). Thus  compensation claims for recreational injury sustained whilst diving into shallow bodies of water, using buoys and groynes as diving platforms or climbing the underside of a fire escape gantry have all failed, for there was nothing wrong with the state or management of these structures, instead in each case the danger was created by the victim’s decision to use these structures in alternative, unintended and unpermitted ways.

Which brings me back to banister rail sliding. Lord Justice Scrutton’s banister sliding metaphor remained just that, a metaphor, until it became axiomatic and very pertinent in a case heard last year by the High Court in Newcastle, Geary. The case concerned a women left paralysed and wheel chair bound by her decision to slide down the balustrade of a Newcastle pub, The Union Club. That pub, was situated in an “opulent Victorian clubhouse, centred round a stone staircase leading up to a half landing with two returns on either side going up  to the first floor” (Geary 2011: para 6). The court heard evidence that this lady had – whilst sober – chosen to slide, but misjudged the manoeuvre and fell four metres onto the marble floor below. The lady had been heard by a number of witnesses declaring (en-route as she successfully navigated the first stretch of balustrade) that she was emulating Mary Poppins’ famous stair sliding endeavours in doing so.

The court report reveals that she was not the first person to have been attracted to the slider potential of these balustrades, noting that employee witnesses had recalled at least four other people having suffered injury after banister rail sliding at this premises in the period 2005 to 2007. And the sliders were not all youngsters, notably one manager recounted:

“that on one occasion, he had to stop an elderly female customer who was trying to put her leg over the banister and slide down backwards.” (Geary 2011: para 20)

The crux of the claimant’s case was that although she accepted that she was partly to blame in freely choosing to expose herself to the inherent risks of banister rail sliding, there was an additional obligation on the pub owners to protect her from her own temptations – and that the presence of a nice smooth, un-nodulated, balustrade was evidence of their failure to adequately meet that duty to protect.

Here the claimant’s case came close to reviving the so-called ‘doctrine of allurement’, a judicial device of some vintage, by which judges sought to find routes to compensation for claimants by accepting that in certain circumstances some physical features summon people – like the Sirens’ call – such that they are drawn uncontrollably towards them and their danger. But this doctrine never took a clear hold in English Law, and whilst it had more success in the US courts it was rarely extended to adults. The English courts are not particularly amenable to arguments based upon imputing agency to lumps of metal, wood or stone, no matter how artfully or ingeniously combined.  For more on this see Bennett 2011.

But interestingly, the judge did in Geary have more time for something similar (and more helpful to the property owner) – a notion of auto-suggestion, when he noted without criticism that the pub owners had considered erecting a warning sign, but had decided against this course of action on the ground: “that it would attract more people to the possibility of sliding who hadn’t otherwise thought of it” (Geary 2011: para 21).

The judge in Geary drew upon the weight of recent judicial pronouncements to comprehensively reject the claimant’s claim, quoting Lord Justice May’s ruling in the 2008 Court of Appeal case, Poppleton that: “adults who choose to engage in physical activities which obviously give rise to an unavoidable risk may find that they have no means of recompense if the risk materialises so that they are injured”.

Thus, the judgment concluded that the pub owner had no responsibility to prevent the claimant from suffering the injuries that she did. It also reports that following this serious accident the pub applied a cheap cost (£300) physical measure – wrapping a length of thick rope along the length of the balustrades, thereby obstructing the baluster to sliding. Brass nodules were not an option in this instance due to sensitivity by English Heritage to the building’s listed building protected status (which had also led to the retention of lower than normally permissible banisters, a factor which the judge acknowledged as having made the balustrades easier than normal here to mount and slide).

So, banister sliders beware. You are on your own. Owners have no legal obligation to save you from yourself. They do, however, have a duty to protect bystanders from injury by your fall, and balustrade nodules, sturdy rope or some other friction denying or passage disrupting technology may be the best way of discharging that legal duty.

References:

Bennett, L (2011) “Judges, child trespassers and occupiers’ liability” International Journal of law in the Built Environment, 126-145 (or a draft copy at http://shura.shu.ac.uk/2862/)

Punch (1842) “The Medical Students: Chapter III”, Punch, Volume 3-4, pp. 215-217

Hogg, R (2002), “Law’s other spaces”, Law/Text/Culture, Vol. 6: pp. 29-38.

Cases:

The Calgrath [1927] P93, 110

Geary –v- JD Wetherspoon [2011] EWHC 1506

Trustees of the Portsmouth Youth Activities Committee (a charity) –v- Poppleton [2008] EWCA Civ 646.

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About lukebennett13
Reader & Course Leader, BSc Hons Real Estate, Sheffield Hallam University, UK. I TEACH: built environment law to construction, surveying, real estate and environmental management students. I RESEARCH: metal theft; urban exploration & recreational trespass; occupiers' perceptions of liability for their premises. I THINK: about the links between ideas, materialities and practices in the built environment. I WAS: an environmental lawyer working in commercial practice for 17 years before I joined academia in 2007. I EXPLAIN: the aims of my blogsite site here: https://lukebennett13.wordpress.com/2012/02/15/prosaic/ LINKS: Twitter: @lukebennett13; Archive: http://shu.academia.edu/lukebennett. EPITAPH: “He lived at a little distance from his body, regarding his own acts with doubtful side-glances.” James Joyce, Dubliners

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