Personal Injury Liability Update

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1 Personal Injury Liability Update David Sanderson & Mary Newnham CPD Ref: AVV/CHRW 12 King s Bench Walk, Temple, London EC4Y 7EL, Tel: , Fax: , Video Conferencing: Website: DX 1037 Chancery Lane 1

2 PI Liability Update: May 2012 This paper highlights the main PI liability decisions in 2011 and 2012, grouping them for convenience under the following headings. Subject Page Road traffic 2 Animals 10 Falling Trees 12 Occupiers 13 Highways 17 Assault and battery 18 Employer/employee 18 Vicarious Liability 27 2

3 Road traffic 1. In Lightfoot v Go-Ahead Group 1 McCombe J revisited drunken pedestrians; the Claimant was hit by a bus after he walked out into a dark unlit country carriageway to flag it down. He was found to be 40% to blame. The focus should be upon what the Claimant did rather than the explanation for what he did. It was the Claimant s act of walking onto the carriageway and into the path of the bus, rather than the drunken state in which the act was undertaken, that was relevant 2. Nor was this one of those exceptional cases identified by Hale LJ in Eagle v Chambers 3 where a pedestrian suddenly moved into the path of an oncoming vehicle, where the presumption of a 60/40 starting point, in favour of the pedestrian, did not apply. 2. Goad v Butcher 4 involved a tractor with trailer turning right and cutting a corner in breach of the Highway Code. The tractor was struck by a speeding motorcycle. Rule 155 provides take up a position just left of the middle of the road or in the space marked for turning right. A failure to observe the Code may be evidence of negligence, but whether it was depended upon the facts. The majority considered that to have allowed 110 metres visibility was sufficient on a bright summer s day with a dry road. The tractor driver had not been negligent in failing to foresee that the Claimant would be travelling towards him at a speed in excess of the limit on the outskirts of the village, such that he would be unable to control his machine and avoid a collision. 3. In Pethean-Hubble v Coles 5 the 16 year old cyclist rode off the pavement into the path of a car. Primary liability was established on the grounds of the Defendant s excessive speed (found to be 35mph), but the Claimant creating the emergency situation meant 1 [2011] EWHC 89 (QB) 2 It is not the fact that a plaintiff has consumed too much alcohol that matters, it is what he does. If he steps in front of a car travelling at 30 mph at a time when the driver has no opportunity to avoid an accident, that is a very dangerous and unwise thing to do. The explanation of his conduct may be that he was drunk: but the fact of drunkenness does not, in my judgment, make the conduct any more or less dangerous and it does not in the circumstances increase the blameworthiness of it. ; per Stuart-Smith LJ in Liddell v Middleton [1996] PIQR 36, [2003] Civ 1107, [2004] RTR 115 It is rare indeed for a pedestrian to be found more responsible than a driver unless the pedestrian has suddenly moved into the path of an oncoming vehicle The court has consistently imposed upon the drivers of cars a high burden to reflect the fact that the car is potentially a dangerous weapon : Latham LJ in Lunt v Khelifa [2002] EWCA Civ 801, para [2011] EWCA Civ 158 [CA] 5 [2012] EWCA Civ 349 3

4 that the degree of his contribution to the collision was assessed by the trial judge to be 50%. After consideration of s.1(1) of the Law Reform (Contributory Negligence) Act 1945 the damages were reduced by only one third, taking account of the Claimant s age. Upon the parties appeal and cross-appeal, the Court of Appeal upheld the finding of primary liability but reset the deduction for contributory negligence to 50%; there was no reason to treat the Claimant as if he were anything other than an adult. 4. In Belka v Prosperini 6 the Court of Appeal dismissed a Claimant s appeal on apportionment where HHJ Walton had found him two-thirds to blame for running into the path of a taxi on the A193 during the early hours after drinking about four pints of beer. This case was one of a pedestrian suddenly moving into the path of an oncoming vehicle ; see Eagle v Chambers above. On blameworthiness, Hooper LJ considered the Claimant far more to blame : the fault of the driver was not to ease off on the accelerator in anticipation of the risk that the pedestrian, whom he had seen or ought to have seen, and might decide to cross in an untoward way; the fault of the Claimant was to take a deliberate risk of an accident in running across the road in front of the taxi which had right of way. Considering the words of Lord Reid on causative potency in Stapley v Gypsum Mines 7 the pedestrian s conduct in deliberately taking the risk of trying to cross the road in front of the taxi contributed more immediately to the accident than anything the driver did or failed to do. 5. In Birch v Paulson 8 the Court of Appeal upheld a decision to dismiss a claim brought by a Claimant who was under the influence of alcohol when he stepped out in front of a car on a single carriageway. The Defendant has been travelling at about 40 mph, so about 10 mph below the speed limit. HHJ Davies found that the majority of cautious drivers would reasonably have taken the view that there was nothing unusual in the Claimant s conduct to make them think that there was a real risk that he would suddenly step into the road at a time when it was obviously dangerous to do so. Some cautious drivers might have eased their foot off the accelerator as they came closer to the Claimant, but he concluded that it would not have been negligent not to do so. In any event, such 6 [2011] EWCA Civ 63 [CA] 7 [1953] AC 663, [2012] EWCA Civ 487 4

5 action would have made no difference to the outcome. The Court of Appeal held that the judge s findings were entirely justified and could not be faulted. 6. In O Connor v Stuttard 9 the 9 year old Claimant successfully appealed the dismissal of his claim by HHJ Armitage QC in Manchester. Children were playing on the right hand side of the street as the driver approached. The boy ran across the road chasing a ball, reached the other side, continued to play with the ball, kicking it against a wall, and then moved backwards towards the edge of the pavement in order to control the ball, his heel protruding over the kerb. The car struck the back of his foot causing serious injury. The words of Dame Janet Smith are instructive in evaluating the duty of a driver faced with this type of scene:. the Defendant was negligent. He knew Clay Street well and it was no surprise to him that there were young children playing there. He was, in effect, driving through a playground. The duty upon him was accordingly high. The Judge accepted that he adjusted his speed when he saw the children and took up a line of travel close to the left kerb. That was sensible as the children were then on his right. However, when the Claimant crossed in front of him to the left pavement, his line of travel was going to take him very close indeed to the Claimant. He saw that the Claimant was continuing to play with the ball; he kicked it against the wall. He was not looking towards the Defendant. That created a situation fraught with danger. The movement of the Claimant was at that time wholly unpredictable. Balls can be difficult to control and children can do silly things. In my judgment, it behoved the Defendant to ensure that the Claimant was aware of his presence and was keeping still before he proceeded. If that meant stopping his car, so be it. I do not think that such would be a counsel of perfection in these circumstances. He was going only slowly so there would be no difficulty in stopping. His was the only moving vehicle in the street at the time so there was no pressure upon him to keep traffic moving. It may be, I cannot say, that it would have been possible for the Defendant to ensure that the Claimant looked at him and stopped playing by sounding his horn but without actually stopping his car. But, in these circumstances, the onus was on him, as an adult and as the driver of a car, either to sound his horn or stop or both so as to ensure that the claimant kept still while he proceeded. This may sound exacting but, in my judgment, it is not an unreasonable burden to place on a motorist who is driving very close to a young child. 9 [2011] EWCA Civ 829 [CA] 5

6 7. Kenneth Parker J decided another pedestrian/speeding driver case in McDermott v Pettit 10. The accident occurred in the early hours in the centre of Liverpool. The Claimant chose not to use a pedestrian crossing located about 10 metres from where he crossed. He was just entering the middle lane of a three way carriageway when he was struck as the Defendant veered into that lane from the inside lane. He had undertaken a taxi, was driving too fast and was under the influence of alcohol. He had pleaded guilty to dangerous driving. Contributory negligence was assessed at 10%, since the Claimant had taken an unreasonable risk in crossing at all; the prudent pedestrian would have decided to cross Dale Street only if he could have reasonably expected to reach the other side, so crossing all three lanes, before the oncoming vehicle reached the point of crossing. Also the Judge regretted to say that: in modern conditions a reasonably prudent pedestrian would not assume that at that time in the morning all drivers would be within the legal limit of alcohol consumption. 8. Next, Malasi v Attmed 11 an apportionment of 80/20 against a cyclist riding through a red light colliding with a taxi travelling mph in a 30 mph limit. A submission that travelling at such speed was not negligent failed. 9. David Pittaway QC decided Ringe v Eden Springs 12 in January A motorcyclist overtook a lorry on the approach to a junction, at mph in a 50 mph limit. The Defendant was turning right onto the major road. He should have waited for the lorry to pass; then he would have had a clear view of traffic approaching from the right; great care was required when a driver turned right out of a junction: Farley v Buckley 13 ; but 10 [2011] EWHC QBD, HHJ Seymour QC, Lawtel 12 [2012] EWHC [2007] EWCA Civ 403 This was the nosing out case. Swift J s remarks on speed at first instance are instructive: The other important aspect is the claimant s speed. I have found this to be 30 miles per hour, which was the maximum speed at which traffic was permitted to travel on this stretch of road. It is speed which one would expect to be attained in clear road conditions by a vehicle with a clear unobstructed view of the road ahead. Here the claimant was performing a hazardous manoeuvre in circumstances in which he was unable to see to his left or in front of the vehicle he was overtaking. It behoved him, if he was to undertake this manoeuvre at all, to do so at such a speed that he could stop within a very short distance indeed The claimant s speed made it completely impossible for him to deal with an emergency of the type which he faced as he overtook the refuse wagon. It is conceded on his behalf that his speed was excessive, having regard to the road conditions. I would go further than that and say that he was travelling at a speed which was reckless having regard in particular to the nature of the manoeuvre which he was carrying out, the 6

7 overtaking in a hatched area, near a junction, significantly exceeding the speed limit resulted in an 80/20 apportionment against the motorcyclist. 10. In Rehman v Brady 14 a 7 year old Claimant ran across a road and was struck by a Range Rover. The speed limit was 20 mph. Parked cars, road works and speed bumps were all at the locus. The Defendant s speed was mph. Sharpe J held that a speed of no more than 15 mph was appropriate. dismissed. Allegations of contributory negligence were 11. In Tavares v Hudson-Rotin 15 (Globe J) the Court again held that a maximum speed of 15 mph was appropriate. The accident took place in a 20 mph zone shopping street that had been pedestrianized with speed tables. The Defendant, who was driving at 28 mph, failed to see the Claimant crossing the road ahead of her until the last moment, despite having ample time in which to avoid a collision. The Claimant, who failed to have a second look to his right as he crossed a two lane street, was adjudged 15% contributorily negligent. 12. Woodham v Turner 16 was another emerging driver turning right v motorcyclist case. The Court of Appeal increased the liability of the latter from 30% to 50%; the Claimant filtered up on the off side of a queue of traffic when the gap left by the leading tractor gave rise to a foreseeable risk that a vehicle would emerge from the junction; 15 mph or less (rather than 20 mph) would have given him more chance to take evasive action. 13. In Smith v Chief Constable of Nottingham 17 the Court of Appeal overturned Mr Recorder Herbert s apportionment of 75/25 against a 16 year old Claimant pedestrian on a night out in Nottingham who was struck by a Police car attending an emergency and driving through a red light at mph in a 30 mph limit. Instead the Claimant was held one third to blame. She was more to blame for her misfortune than a pedestrian crossing the road in front of an ordinary car, because she failed to heed the lack of visibility to his left and the fact that the refuse wagon (albeit probably unnoticed by him) was displaying its left indicators. 14 [2012] EWHC QBD 13/3/12 Lawtel 16 [2012] EWCA Civ [2012] EWCA Civ 161 7

8 flashing lights and siren; but the major responsibility for the damage and therefore the more causatively potent factor was the negligent driving of the Defendant. Ward LJ gave the leading judgment as below. The quotes reveal quite how startling was the result at first instance. 35. The Recorder was wrong to seek to distinguish Eagle v Chambers by saying at [104]: In this case the Claimant did as I have found suddenly move into the path of the approaching car. That may be correct so far as it goes but it is inconsistent with his finding at [85] that the claimant had walked into lane 2 before moving more quickly whether by darting or by running towards the north kerb in an attempt to avoid the collision. The Recorder had rejected the police officers evidence that the claimant (and others) had run in front of their vehicle. All the evidence is consistent with the claimant pausing, if it is not unkind to say so, like a rabbit caught in the headlights, as she became aware of the danger and then attempting to avoid the disaster by her dart or run for hoped for safety. The Recorder acquitted the police officer of blame for steering to the right which he correctly characterised at [94] as an act clearly done in the agony of the moment. The claimant s act was no different and the Recorder was wrong not to recognise it as such. It does not justify this case being treated as totally different from Eagle v Chambers. 44. In the light of the evidence that had PC Avann reduced his speed to 40 mph then the collision would have been avoided, the Recorder s finding was inevitable that in all the circumstances to which he properly had regard, PC Avann was negligent in travelling at a speed between mph through the traffic light controlled junction with Carrington Street and into the section of Canal Street where the collision occurred. The cross-appeal against that finding of primary liability is hopeless and I would dismiss it. 52. In my judgment one must not get too influenced or led astray by mathematical calculations in reconstructing this accident. Just examine the evidence. PC Avann said he had slowed down to 10 mph going through the junction. He did not do so. He approached it at about 45 mph and if he slowed down it was hardly at all. On his own admission he was already making his way along Canal Street to the west of the junction when he saw the lone female only a matter of feet in front of him. He did not see her step off the pavement. He did not see her walk to the point where her presence did alert him. That was when she had already reached the middle of the second lane. We know that at that moment he was doing between 45 and 50 mph in an area where he could expect pedestrians to be crossing the road. It was too fast. The pedestrian was in the road for an appreciable time. On this well illuminated carriageway, her wearing dark clothing cannot explain his not seeing her. She was seen by those outside the cash machine and that was about 70 metres away from the impact site. Visibility travelling west down Canal Street extended for not less than about 150 metres. She had stepped off the kerb before he reached the stop line at the junction. In my judgment PC Avann failed to keep a proper lookout for the speed he was doing. 8

9 53. It follows that the Recorder erred in finding PC Avann to have been attentive and clearly keeping a proper lookout for any pedestrian that might be crossing the path of his approaching car. My conclusion on the totality of the evidence is that he plainly should have seen her. I would therefore allow the appellant s appeal. What is the proper apportionment of contributory negligence? 54. I have now to ask what is the just and equitable reduction to make having regard to the claimant s share in the responsibility for the damage she suffered. Her damage was caused partly by her crossing the road when it was unsafe to do so. She put herself in danger. There was no justification for the Recorder finding she showed a reckless disregard, his emphasis, for her own safety. The major cause of the injury she suffered was her being struck by the Volvo travelling at an excessive speed in circumstances where it could not be brought to a halt in time to avoid the accident. At 40 mph PC Avann could have stopped and the claimant would not have been injured. He did not see her but then she did not see him. She was more to blame for her misfortune than a pedestrian crossing the road in front of an ordinary car because she failed to heed the flashing lights and the siren but the major responsibility for the damage and therefore the more causatively potent factor was the negligent driving of what was and what unfortunately became a dangerous weapon. 14. Delaney v Pickett and Tradewise Insurance 18 was an MIB case; the passenger in possession of cannabis with intention to supply had his claim defeated by a majority of the Court of Appeal (Ward LJ dissented) on the strength of clause 6 (1) (e) (iii): he knew or ought to have known that the vehicle was being used in furtherance of a crime. 15. In Clark v Clarke & MIB 19 the Claimant took part in a fight with several relatives involved in a long-running family feud. The Claimant attacked the First Defendant s vehicle with a machete while it was parked on the gravelled entrance to a farm. The First Defendant drove the vehicle onto a nearby paddock at which point the Claimant was run over and paralysed. The defences (argued by the MIB) of ex turpi causa and self-defence were not made out. On the basis, however, that the accident had not occurred as the result of the use of a vehicle on a public road, judgment was entered against D1 only and the claim against the MIB was dismissed. 16. In Stangroom & Equity Red Star v Brown 20 a tractor driver successfully appealed a decision that he was 25% liable for an accident which occurred as he edged out slowly 18 [2011] EWCA Civ QBD, McKenna J, 30/04/2012, Lawtel 20 [2012] EWCA Civ 424 9

10 from a layby on a sweeping bend. The Claimant, a motorcyclist, had been travelling along the road well above the speed limit of 60mph. It was held that the use of the hazard light or horn on the tractor would not have made any difference. Nor was it negligent to exit the layby without being waved out by an assistant. The Defendant s decision to exit the layby over the grass verge rather than at the end of the layby, so as to give himself greater visibility, was evidence of care rather than want of care. 17. In Burton v Evitt 21 the Court of Appeal imposed an apportionment of 80/20 in the Defendant s favour in place of the first instance split of 66/33. The Defendant was turning right from the head of a queue of traffic. His view to the rear was obscured by a large vehicle. He collided with the Claimant, a motorcyclist who was overtaking the queue of traffic at some speed. Neither driver saw the other. The Court of Appeal upheld a finding that the Defendant should have inched out in circumstances where his view was blocked. However, the negligence of the Claimant had been gross. The actions of the parties deserved greater differentiation on the issues of causative potency and moral blameworthiness. 18. Hughes v Williams & Williams 22 was a seatbelt case with a difference. The Defendant lost control of his vehicle and swerved into the path of a vehicle in which the infant Claimant was travelling. Liability was admitted on behalf of the deceased Defendant, but contribution proceedings were brought on his behalf against the Claimant s mother. The vehicle had been fitted with both a forward facing child seat and a booster seat. The Claimant was in the booster seat, which was inappropriate for her height, weight and age, according to the manufacturer s guidelines. The Claimant s mother argued that she was entitled to make her own judgment as to the appropriate seat. It was held that it was negligent for the Claimant s mother to have put her in the booster seat rather than the child seat. If she had been in the child seat, her injuries would have been largely avoided. A contribution of 25% was appropriate following Froom v Butcher. 21 [2011] EWCA Civ [2012] EWHC

11 19. This month, in Whiteford v Kubas UAB 23 the Court of Appeal held that a Recorder had imposed a counsel of perfection in finding that a lorry driver was negligent in driving so that his front wheels were on the centre white line of the road, or slightly over, as he drove around a corner on a narrow country lane. He had collided with a motorcycle coming in the opposite direction who admitted he could have been driving further to the left. The lane was not much wider than the lorry, and driving any closer to the nearside would have presented its own risks. Animals 20. In Addis v Campbell 24 the Court of Appeal considered the liability of a dog owner where the dog knocked someone over. Taz was a bull terrier. Stanley Burnton LJ repeated the remarks of Aikens LJ in Whippey v Jones 25, in dismissing the Claimant s appeal: The question of whether a person has acted negligently is not answered simply by analysing what he did or did not do in the circumstances that prevailed at the time in question and then testing it against an objective standard of 'reasonable behaviour. Before holding that a person's standard of care has fallen below the objective standard expected and so finding that he acted negligently, the court must be satisfied that a reasonable person in the position of the Defendant (i.e. the person who caused the accident) would contemplate that injury is likely to follow from his acts or omissions. Nor is the remote possibility of injury enough; there must be a sufficient probability of injury to lead a reasonable person (in the position of the Defendant) to anticipate it. 21. David Pittaway QC proved a clear analysis of the Animals Act 1971 in Bodey v Hall 26. A groom had been travelling in a trap being pulled by the Defendant s horse. She was thrown whilst not wearing a riding hat. She was an experienced horsewoman. The horse s reaction, that lead to the accident, was caused by an unknown stimulus. The case fell squarely within section 2 (2) (a) and (b) 27. The horse s behaviour in becoming 23 Court of Appeal, 09/05/12 Lawtel 24 [2011] EWCA Civ 906 [CA] 25 [2009] EWCA Civ [2012] PIQR P1 27 For guidance on this topic see Etherton LJ in Freeman v Higher Park Farm [2008] EWCA Civ 1185 [CA]: 22. Accordingly, in the case of a domesticated animal, the statutory process requires (1)identification of the kind of damage actually caused by the actual animal involved; (2) consideration of whether that kind of 11

12 startled by a stimulus of an unknown cause was not normal behaviour generally for animals of that species, but it was normal behaviour in the particular circumstances where there was an unknown stimulus. However, section 5 (2) applied; the Claimant had voluntarily accepted the risk of injury from the trap tilting or tipping when she agreed to act as groom on the day of the accident. The failure to wear a riding hat was not found to have been such as to call for a finding of contributory negligence. There were clearly different schools of thought as to whether riding hats should be worn whilst carriage driving. 22. Goldsmith v Patchcott 28 was decided by the Court of Appeal in late February The Claimant was thrown from a rearing horse. The section 5(2) defence succeeded; it was not a prerequisite of that defence that the Claimant should foresee the precise degree of energy with which the animal would engage in its characteristic behaviour. The Claimant had contended that she had voluntarily accepted the risk of normal bucking but not the risk of violent bucking! If the Claimant foresaw the possibility of bucking and voluntarily accepted that risk, then section 5(2) was engaged. The cross appeal was dismissed too. The keeper argued that at particular times or in particular circumstances denoted times or circumstances which could be described or predicted; horses did not only buck when startled or alarmed. It was held that section 2 (2) (b) 29 damage was likely to be caused by that particular animal, unless restrained, or, if caused, was likely to be severe; and (3) consideration of whether the likelihood of such damage or its severity was due to the deviation of the animal from the normal characteristics of others in the same species or to characteristics which it shared with others of the same species but are normally found in the species only at particular times or in particular circumstances. In other words, even if the animal which caused the damage was dangerous due to the likelihood of such damage or its severity, it will only give rise to strict liability under the 1971 Act if, in addition, its characteristic giving rise to that likelihood deviates from the norm of the species or if the species itself has that characteristic at, and only at, particular times and in particular circumstances. 23. Stripped of its rather complex legal framework, the policy underlying s.2(2), as clarified by case law, is straightforward. Strict liability for an animal belonging to a domesticated species will only arise if (1) the damage is caused by a dangerous characteristic (dangerous because of the likelihood that type of damage will be caused or, if caused, its likely severity), and (2) that characteristic deviates from the normal characteristics of that domesticated species, or (3) that domesticated species is itself dangerous insofar as it normally has that characteristic at particular times or in particular circumstances, and the damage was in fact caused at such a time or in such circumstances. 28 [2012] EWCA Civ Per Jackson paragraph 36: The effect of section 2 (2) (b), as elucidated after thirty years of judicial analysis, is neatly summarised by Lord Nicholls in Mirvahedy at paragraph 43 as follows: Requirement (b) will be satisfied whenever the animal s conduct was not characteristic of the species in the particular circumstances. Requirement (b) will also be satisfied when the animal s behaviour was characteristic of the species in those circumstances. 12

13 should not be given that restrictive interpretation. On the evidence, the Judge had found that bucking and rearing were a characteristic of horses in particular circumstances, namely when they were startled or alarmed. His conclusion that the requirements of s.2 (2) (b) were satisfied followed logically from that finding. Bucking by a horse when startled or alarmed was a characteristic which fell within the second limb of s.2 (2) (b). 23. Devereux v Hayward 30 also involved a horse. The Claimant was thrown from her horse after it was spooked by a speeding motorcycle. The claim succeeded. Falling trees 24. First, Mackay J in Bowen v The National Trust 31. Children sheltered under the canopy of a large post mature beech tree in rain fagus silvaticus. A large branch fractured without warning, killing one child and seriously injuring three others. The issue concerned the adequacy of the Defendant s inspections. The claim was brought under the Occupiers Liability Act The parties agreed that the standard of care imposed on the inspectors was that laid down in the well-known clinical negligence case of Bolam v Friern Hospital Management Committee: the standard of an ordinary skilled person professing to have the skill in question; he was not acting negligently if he acted in accordance with a practice accepted as proper by a responsible body of opinion in the particular field. The judge found no negligence or breach of duty was established. 25. In Micklewright v Surrey CC 32 a Claimant s appeal failed where the Deceased had been killed by a falling tree branch onto parking bays bordering Windsor Great Park. The Defendant had not had a proper system for inspecting the trees bordering its highways, but the Court of Appeal declined to interfere with the finding of HHJ Reid QC at first instance that, even if there had been a proper system of inspection, the extent of the decay and the danger posed by it would not have been revealed. 30 [2011] EWHC 2780 [QB] 31 [2011] EWHC [2011] EWCA Civ

14 Occupiers 26. Furmedge v Chester-le-Street DC and Others 33 concerned a substantial inflatable PVC structure. Wind caused it to break free from its anchorage. Two died, others were injured. The local authority accepted liability; they had not carried out a proper risk assessment. But was the event organiser liable too? Foskett J found them to have been occupiers. He found them to have owed a duty of care in negligence too; the Caparo requirements were in place. The Judge restated the proposition that acts and omissions which are not causative of loss may be taken into account for the purposes of assessing what (if any) contribution should be ordered BIL became an occupier of the structure at Chester-le-Street through a combination of factors. Through its employees it played an active and central role in the initial construction of the units that comprised the Dreamspace structure, it erected the final structure in Liverpool, it dismantled it, it transported it to Chesterle-Street and erected it there. The intention was (as in fact occurred until the tragedy struck) that the same employees would act as stewards inside and outside the structure in the way I have described previously. To the extent that they played a part (or were intended to play a part) in the control of who went into the structure and how they behaved whilst inside they should be treated as having some degree of physical control over the premises. To the extent that, albeit under someone else s direction, they helped construct it gave BIL s employees some degree of physical control over its construction If I was wrong that the specific factors I have identified were sufficient to constitute occupation by BIL for the purposes of the 1957 Act, I consider that an additional factor tips the balance yet further in the direction of that conclusion: that factor is an appreciation by BIL that any failure by it to use care in relation to the structure could cause injury to people using it. An appreciation of that nature yields a broader perspective which, added to the specific factors I have mentioned, confirms its role as an occupier It seems to me that, if there was any doubt about the question of occupation, then so far as that issue is influenced by an appreciation of danger within the structure if proper care was not shown, this consideration would provide yet further support for the conclusion that there was occupation within the meaning of the law. Given that BIL would have known that its employees were going to be erecting the structure in Chester-le-Street, it seems to me incontestable that BIL owed a wider duty of care to those who entered the structure in consequence of the work carried out by its employees. There can be no refuge for BIL in the excuse that the work was to be carried out under Maurice Agis supervision because, at least by this 33 [2011] EWHC

15 time, there were additional questions that needed to be addressed over and above those that ought to have been addressed when it was appreciated, as it should have been, that the risk assessment provided by him was wholly inadequate I have addressed the issue largely in terms of the question of occupation of the structure. However, once BIL assumed some responsibility for the structure of the Dreamspace V exhibition in Chester-le-Street by sending its employees to erect it and supervise it as they had in Liverpool, particularly against the background of the inadequate risk assessment and the warning bells that should have been heard in Liverpool, I can see no justification for saying that it did not owe a duty of care in negligence. It seems to me that all the Caparo requirements were in place. 27. Sliding down bannisters with catastrophic consequences for the Claimant provided the background to Geary v Wetherspoon PLC 34 before Coulson J. The case provided a graphic illustration of what Scrutton LJ had alluded to in The Calgarth [1927] P93, 110; when you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters, you invite him to use the staircase in the ordinary way in which it is used. The claim failed. The Claimant was found to have accepted the obvious risk inherent in sliding down the bannisters 35, and the principle of voluntary assumption of risk was fatal to her claim 36. responsibility on the part of the Defendant. There was no relevant assumption of 28. In Clark v Bourne Leisure 37 the Court of Appeal overturned a judgment below for the Claimant. She had visited the bar on the holiday site in her electric wheelchair using the ramp. But she left by the first of two steps in error. It was held that the premises were reasonably safe for wheelchair users. The steps were not safe for wheelchairs but they were clearly visible; any wheelchair user taking reasonable care for his/her own safety would avoid using them. 29. Grimes v Hawkins 38 will be well known to all. Kylie Grimes failed in her claim for damages following diving into a householder s private swimming pool. Thirwall J 34 [2011] EWHC In her evidence it was put to her that sliding down a bannister anywhere carried the obvious risk of falling off. She replied: absolutely. When it was suggested to her that this was a risk which she had chosen to take, she gave the same answer. She also accepted that she had not thought for a moment that she was allowed to slide down the bannisters. 36 The case was no different to Tomlinson v Congleton BC [2004] 1 AC 46 or Trustees of the Portsmouth Youth Activities Committee v Poppleton [2008] EWCA Civ 646; see paragraph 45 of the judgment. 37 [2011] EWCA Civ [2011] EWHC

16 concluded that the pool was not unsafe for diving; the risk that arose was not from the state of the premises, rather it was caused by the risk inherent in diving. Nor was there an assumption of responsibility for the Claimant s safety by the householder. It would not have been fair, just or reasonable to have imposed upon the Defendant a duty of care which required him to put the pool out of bounds or prohibit adults from diving into the pool. 30. Sutton v Syston Rugby Football Club Ltd 39 concerned Jack Sutton, aged 16 ½, suffering injury during pre-season training; he suffered a gash to his knee from a plastic piece of a cricket boundary marker; the cricket club had used the area a few days earlier. The Defendant s appeal succeeded. Even though the Club accepted that there should have been a general inspection of the pitch before the training session began, and none took place, Longmore LJ decided that, games of rugby being desirable activities within section 1 of the Compensation Act 2006, before a game or training session, a pitch should be walked over at a reasonable walking pace by a coach or match organiser., if that is done, that will satisfy a Club s common law duty of care in relation to inspection 40. He then went on to find that a reasonable walk over the pitch inspection would have been unlikely to reveal the stub. 31. Dufosse v Melbry Events Ltd 41 involved an accident in Santa s grotto at Selfridges. The elderly Mrs Dufosse said that she had lost her balance and fallen as a result of stepping onto a plastic icicle. Her appeal was allowed; essentially, Santa and his elf were not as careful in taking precautions against impedimenta on the floor as they should have been. 32. Hufton v Somerset County Council 42 was a case about an accident in a school hall following rain; the Claimant s appeal was unsuccessful. The Court of Appeal refused to interfere with the assessment of the Judge below that the procedures in operation for both wet and dry breaks were entirely reasonable, appropriate and sufficient to ensure 39 [2011] EWCA Civ It was important, expressed Longmore LJ, that neither the games professional organisation nor the law should lay down standards that are too difficult for ordinary coaches and match organisers to meet; paragraph [2011] EWCA Civ [2011] EWCA Civ 789 [CA 16

17 the reasonable safety of pupils 43, even though the system had failed in this instance. Nor did Ward v Tesco Stores Ltd 44 save the claim. Unlike in Ward, the evidence did not show that liquid gathering on the floor was a frequent problem or that there needed to be a special system to ensure prompt mopping up. What the Council put in place in the present case was a proper system to prevent water being deposited on the assembly hall floor; Unfortunately that system did not prove effective on 11 October Nigel Wilkinson QC rejected Sam Hewitt s claim in Hewitt v Hertfordshire CC [QBD] 45. He lost the tip of a finger in a fence when retrieving a football at school. Allegations of want of supervision were roundly rejected. As to the fence, the sharp tips were well known to the Claimant and plain to see. He had seen warnings that he should not touch the fence too. The case was hopeless. 34. In Armstrong v Keepmoat Homes Ltd, Northumberland CC and Blythe Valley Borough Council 46 HHJ Simon Wood QC sitting in the High Court in Newcastle, dismissed the claim brought by the 12 year old Dionne Armstrong who was struck by a car on the A189. She sued the occupiers of the adjoining land. It was held that there was no authority for the proposition that there was a duty, either under the Act or at common law, on the part of an occupier to prevent a visitor leaving his land so as to prevent the visitor from coming into contact with danger on neighbouring land. The danger did not arise from the state of the occupier s land. Nor, absent any special relationship, such as in Carmarthenshire CC v Lewis 47, did any other common law duty arise to prevent the Claimant from leaving the Third Defendant s land or take the conscious decision that she thereafter did, namely to wait at the side of the road and then attempt to cross. 43 Per Jackson paragraph 28: It is not possible, and the law does not require, the occupier to take measures which would absolutely prevent any accident from ever occurring. What is required both by the common law and by section 2 of the OLA 1957 is the exercise of reasonable care. 44 [1976] 1 WLR /7/2011 Lawtel 46 14/2/2012 Lawtel 47 [1955] AC 549; Liability arose because the child who caused the accident had escaped from the defendant s land at a time when in loco parentis, a relationship which gave rise to the duty to prevent the child escaping on to the road. 17

18 35. The accident in Dawkins v Carnival PLC (t/a P&O Cruises) 48 occurred on a cruise ship. The application of Ward v Tesco Stores Ltd was once again considered. In essence the Court of Appeal found the Judge was not entitled to conclude that it could not be inferred that the accident occurred through want of care. The presence of liquid was more consistent with fault on the part of the Defendant than with the absence of fault on their part. Pill LJ was plainly very unimpressed indeed by the absence of evidence from any members of staff supposedly implementing the inspection/cleaning system at the time of the accident. In such circumstances, the Judge had not been entitled to infer that the offending spillage occurred only a few seconds/a very short time, before the accident. Highways 36. Thomas v Warwickshire CC 49 was a decision of Wilkie J. A small spillage of concrete which stuck to the highway was sufficient to result in section 41 Highways Act 1980 liability 50. This was a real source of danger. But contributory negligence was assessed at 60% against the cyclist. The group was riding at more than 20 mph, downhill, towards a bend, within 5 of 6 inches of the rear wheel ahead. 37. Dalton v Nottingham CC 51 was a case where the Defendant challenged the Judge s decisions in favour of a Claimant who tripped on a loose, raised and wobbly paving stone on most of the material elements of a typical Ss.41 and 58 case. The appeal failed on all counts, the Court of Appeal upholding Hamblen J decision for the Claimant on all issues. 48 [2011] EWCA Civ [2011] EWHC In the absence of specific intervention by a road mending gang, the change in the fabric caused by the bonding of the concrete to the previous road surface will be permanent, or at least long lasting sufficient to bring it within s.41. ; paragraph [2011] EWCA Civ

19 Assault and battery 38. In Co-operative Group v Pritchard 52 the Court of Appeal considered the availability of contributory negligence as a defence to a claim for assault and battery. The case is well worth a read because it reveals how the law lost its way on this topic. The Court of Appeal decided that contributory negligence is not available as a defence. So a Claimant who deliberately behaves badly by provocative or intimidatory conduct or even by initiating violence, is entitled to recover in full from the Defendant who retaliates by laying hostile hands upon him 53. That said, Smith LJ regretted this conclusion because she thought that apportionment ought to be available; but the law did not so permit. Employer/employee and pertinent Regulations 39. In Kmiecic v Isaacs 54 the Claimant was a labourer working for an insured contractor at a domestic garage. He fell from a ladder. Did the householder owe duties under the Construction (Health, Safety and Welfare) Regulations 1996 and the Work at Height Regulations 2005? The Claimant argued that duties were imposed because the householder had exercised control over the means of access to the roof, namely by forbidding access through a bedroom window. The claim and appeal failed. Regarding the 1996 Regulations, the mere exercise of control as an occupier was not the same as exercise of control over the way in which the work was undertaken. As to the 2005 Regulations, nothing in the Framework Directive or implementing Directive in relation to the dangers of working at height extended the obligation of employers to a householder who merely seeks to restrict access within her own home by workmen working on repairs there. 40. In Ceva Logistics v Lynch and Others 55 the Appellant owned and operated a warehouse. The Claimant electrician was working there whilst employed by another. He was hit by a truck within the warehouse. Other than apportionment (if it arose), the appeal 52 [2011] EWCA Civ 329 [CA] 53 Smith paragraph [2011] EWCA Civ 451 [CA] 55 [2011] EWCA Civ

20 concerned whether the owner of the warehouse owed duties under Regulation of the Workplace (Health, Safety and Welfare) Regulations 1992 to employees of the contractors working on the site. The appeal was dismissed; they had the ability to control the movement of vehicles and pedestrians in their warehouse; they owed a duty to ensure that there was a proper separation of vehicles and pedestrians in the warehouse. 41. Protective equipment was considered by Spencer J in East Anglia University v Spalding 57. The employer s appeal failed. The Claimant plumber was attending to a leaking radiator. Non-slip mats should have been provided. There was a breach of Regulation 4 of the Personal Protective at Work Equipment Regulations 1992; waterproof clothing should have been provided. provided, the accident would have been avoided. On causation, had either been 42. In Vaile v Havering LBC 58 the Claimant teacher successfully appealed the dismissal of her claim. She was violently assaulted by a pupil suffering from autistic spectrum disorder. The Judge erred in concluding that the system of work was safe. On causation Drake v Harbour 59 was applied. Longmore LJ: Although Drake v Harbour was a very different case on the facts (because there were a number of possible candidates for the cause of a fire in an unoccupied house) the words of Toulson LJ in paragraph 28 are apposite:- where a claimant proves both that a defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer that it was probably so caused, even if the claimant is unable to prove positively the precise mechanism. It may be difficult for Mrs Vaile to show precisely what she or the school could have done to avoid the incident if she had been appropriately instructed in suitable techniques for dealing with ASD children but the probability is that, if proper care had been taken over the relevant three year period, she would not have met the injury she did. 56 (1) Every workplace shall be organised in such a way that pedestrians and vehicles can circulate in a safe manner. 57 [2011] EWHC [2011] EWCA Civ 246, 59 [2008[ EWCA Civ 25 20

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