Re The Calgarth [1927] P 93 (CA)

Facts

• A tug assisting a larger vessel in the Manchester Ship Canal ran aground; its propeller fouled a chain secured to the canal bank by the Canal Company.
• The tug’s owners sued, alleging the chain was an obstruction to passage that caused the damage.
• At first instance the claim succeeded.
• On appeal the Court of Appeal examined whether the tug was acting within the scope of its licence to use the canal when the accident occurred.

Issues

1. Did the chain amount to an actionable obstruction given the circumstances of the tug’s contact with it?
2. Had the tug exceeded the scope of the licence granted by the Canal Company so as to become a trespasser and lose any right to complain of the chain’s presence?

Decision

• The Court of Appeal allowed the appeal and dismissed the tug owners’ claim.
• It held that the tug, though initially a licensee, exceeded its permission by grounding where it ought not to have been; it was therefore a trespasser at the moment of contact.
• Because the tug was outside the scope of its licence, the chain did not constitute an actionable obstruction in law against it.
• The first-instance finding in favour of the tug owners was reversed.

Legal Principles

• A licence to enter or use premises is confined to the ordinary and intended manner of use; going beyond that turns the licensee into a trespasser.
• Scrutton LJ illustrated the rule: an invitation to use a staircase is not an invitation to slide down its banisters.
• Trespass may arise even where initial entry is lawful if subsequent conduct exceeds granted permission (see also R v Jones & Smith [1976] 1 WLR 672).
• In occupiers’ liability, no duty is owed to protect visitors from obvious risks they incur while acting outside the permitted use (applied in Geary v JD Wetherspoon plc [2011] EWHC 1506 and Tomlinson v Congleton BC [2004] 1 AC 46).
• The principle aligns with volenti non fit injuria: a person who willingly undertakes an obvious risk cannot hold the occupier liable.

Conclusion

The Court of Appeal’s ruling in Re The Calgarth confirms that a licence grants only the right to use premises in the manner contemplated by the occupier; any material departure strips the visitor of that licence, renders the visitor a trespasser, and eliminates any claim for hazards encountered while acting outside the permitted scope.