David Marshall, Partner
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In Piccolo v Larkstock Ltd (t/a Chiltern Flowers), Chiltern Railway Co Ltd and others [unreported, QBD HHJ Altman 17 July 2007] the claimant sought damages after slipping “on a petal” (as reported by the media) as he passed the florists at Marylebone Station. However, although it had been argued that the fall had resulted from a single petal, the judge found that it was probably “a yellow flower or flowers” and that there was also water on the floor. Thousands of rail passengers passed close by every day. The station security guard had described the petals as “killers”. The florist Mrs Patel had said that she operated a “clean as you go policy”, but the station manager had criticised this as reactive rather than pro-active. Mrs Patel claimed not to recollect any previous accidents or complaints, but there was a catalogue of documented examples, including the comment that the unit “was a total disgrace”. The judge found that the florist was liable, but that the railway company was not. The judge found no contributory fault on the part of the claimant.
Novice Mistakes
In Poppleton v Trustees of the Portsmouth Youth Activities Committee [2007] EWHC 1567 (QB) the claimant was rendered tetraplegic after falling whilst “bouldering” on an indoor climbing wall. He was a novice who had not signed a participation statement, nor was he given any induction. He never signed the disclaimer form (which the judge found would have been void, but would have warned him of likely risks). The judge found that the registration process did not meet the industry standard (e.g. no declaration of his experience), there was no “buddy” system for novices which was commonplace, there had been no updating of health and safety policy, no risk assessments and the supervision did not meet industry standards. But the judge held that there was no duty of care on organisers to assess and trainer users. There was no actionable breach of the Management of Health and Safety at Work Regulations 1999 because these do not create civil liability. However, the organisers had failed to advise that the presence of thick matting did not make a fall safe. The judge held that at common law there was a duty to warn of specific hidden dangers (like a swimmer who is not warned of the depth of the pool before diving in). The defence of “volenti” failed because the claimant was not fully informed of the risk he was taking. The claimant had undertaken “a foolhardy manoeuvre” in the mistaken belief that a fall onto matting would be safe. The organiser was liable, but with 75% contributory fault.
Taking Care
In Ellis v Bristol City Council [2007] EWCA Civ 685 the claimant was employed at a care home where all the residents suffered from dementia and many were incontinent. The claimant slipped in a pool of urine in the corridor. The floor was smooth vinyl mopped and buffed daily and was slippery when wet. The defendant had an “immediate cleaning policy”. However, there had been numerous falls. Risk assessments had led to non-slip mats (but these were unsuitable for corridors) and new warning signs. Just two weeks before the accident, the National Care Standards Commission had inspected and recommended a change to a non-slip flooring in corridors. This was implemented after the accident.
Regulation 12 (2) Workplace (Health, Safety and Welfare) Regulations 1992 provided that the “construction” of flooring and, specifically, any “traffic route [shall not] … be slippery …to expose any person to a risk to his health or safety.” This is an absolute duty as opposed to Regulation 12 (3) “so far as reasonably practicable… keep free from any…substance which may cause a person to slip”. The Defendant argued that the floor was not inherently unsafe – it only became so because of the urine. The Code of Practice said that if a floor was likely to become slippery then a non-slip surface or slip resistant finish should be applied, but this had not been pleaded or adduced in evidence
The Court of Appeal held that the judge should have considered the Code of Practice, albeit with caution. And Marks & Spencer plc v Palmer [2001] EWCA Civ 1528 (which involved the fitting of a weather strip) did not directly apply here because that dealt with about a permanent feature in the floor, not an intermittent condition. Lady Justice Smith stressed a purposive approach to interpretation saying“the purpose [of the Regulation] is to promote the safety of workers.” She held that “[Regulation 12] is intended to cover permanent features of the floor and also regularly and frequently occurring hazardous conditions …as to make the floor unsuitable for its use”. There had been no need for expert evidence that the floor was dangerous when wet as “there was an abundance of undisputed evidence to prove the point”. “Staff could not be expected at all times to concentrate on the possible presence of urine” but in the light of the recent warnings there was contributory fault assessed at 33%.
Eyes on the road
Turning to the road, Farley v Buckley [2007] EWCA Civ 403 concerned “nose poking”. The claimant had been on a scooter overtaking a long refuse lorry. The refuse lorry had slowed to allow the defendant to pull out from a side road. The defendant collided with the scooter. The key issues were the speed (which was said to be 5-8mph) and whether there had been continuous movement rather than moving forward and stopping to check the way was clear. The defendant argued that the cautious “nose-poking” contended for by the claimant was a “counsel of perfection” and that in proceeding so slowly he had acted reasonably. The judge found for the defendant and this was upheld on appeal, although Lord Justice Maurice Kay did stress “that is not to say in all such cases a driver who fails to nose-poke or emerges continuously at about ‘5-8 mph’ will avoid a finding of negligence…Cases such as these are very fact sensitive.”
As Lord Justice Ward commented, Eyres v Atkinsons Kitchens & Bedrooms Ltd [2007 EWCA Civ 365] “was not a typical claim for damages for personal injuries suffered in a road traffic accident.” No other vehicle had been involved. The claimant had been driving in the course of his employment at night on the M1 when “he braked so suddenly and violently that smoke appeared from the tyres”, lost control of the vehicle and suffered spinal injury. His boss was also in the van. They had left Bradford at 3.30am to fit a kitchen in Swindon. They then drove on to Sidmouth to do more work and began the journey back to Bradford at 7pm. The accident happened at 10.15pm. The claimant was not wearing a seatbelt. Whilst driving, the claimant had sent and received a series of texts to at least six different girls, although the last text was sent some 20 minutes before the accident. The issue to be determined was whether the accident was caused by his being tired and falling asleep at the wheel or by his use of the mobile phone whilst driving. Both claimant and defendant said that they could not remember what had happened immediately before the accident. The Judge at first instance dismissed the claim although he had said that he could not rule out the claimant having fallen into micro-sleep for 1 to 10 seconds.
The boss’s philosophy on life and work was summed up by his comments such as “you can sleep when you’re dead” and “eating is cheating”. The defendant had acknowledged that if micro-sleep was found to be the cause, then he would be liable. The Court of Appeal reversed the trial judge and found that the cause of the accident was the claimant falling into a micro-sleep, but with 33% deduction for contributory fault for the combination of a failure to wear a seatbelt, and for continuing to drive when he must have known he was tired.
In Gawler v Raettig [2007] EWHC 373 (QB) the claimant had been a passenger. He was not wearing a seatbelt and suffered a spinal injury after being ejected from the car following impact. The experts agreed that he would have suffered only minor injuries had he been wearing a seatbelt. The claimant conceded that the award of damages should be reduced by 25% for contributory fault (following the Court of Appeal decision in Froom v Butcher [1976 QB 286], but the Defendants argued that it should be 50%. At first instance Gray J comprehensively dismissed the arguments pointing out that the authority had stood for 30 years and that in Froom too it was accepted that all of the injuries apart from a broken finger would have been avoided if the claimant had worn a seatbelt. Froom was binding authority on him and “is a short and complete answer to the defendant’s argument for a reduction in damages greater than 25%”. He also rejected public policy argument that this should be revisited because of passage of time and public awareness of the importance of wearing seatbelts, commenting “it is striking how alert the court was as early as 1975 to the vital importance of wearing seatbelts.”
However, notwithstanding the comprehensive rebuttal of all the defendant’s arguments, the crux of the judgment was that Froom was binding authority, so the defendant sought a leapfrog appeal to the House of Lords. Permission has been refused and hopefully this will now see an end to these arguments for a greater than 25% reduction. It is of course important to remember, per Lord Denning in Froom, that the 25% deduction is a maximum (“where the damage could have been prevented altogether”) and could be lower 15% (where the injuries “would have been a good deal less severe”) or avoided altogether in an appropriate case (such as in the, admittedly rare, case where the wearing of the seatbelt would have made no difference at all to the injuries sustained).
For further information email David Marshall or call 020 7940 4000.
