England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TORQUAY & NEWTON ABBOT COUNTY COURT
(HONOUR JUDGE ROACH)

		Royal Courts of Justice Strand London WC2
		7th July 2000

Friday, 7th July 2000

1. LORD JUSTICE SWINTON THOMAS: This is an appeal, with permission given by this Court, against an order made by His Honour Judge Roach in the Toruay and Newton Abbot County Court on 21st May 1999, when he dismissed the claimant's claim and ordered that the claimant pay the defendants costs in the sum of £3,000.
2. The claimant's claim arose out of an accident which occurred on 28th October 1996, when he caught the middle finger of his right hand in the door of a lift. The claimant was born on 17th January 1986 and was 10 years and when the accident occurred. He brought these proceedings by his uncle, Mr Griffiths, who acts as his next friend and conducted the proceedings before the trial judge and has conducted this appeal before us.
3. The defendants, Thomsons, are well known holiday tour operator. On 3rd September 1996 the claimant's father booked his holiday for himself and on behalf of his wife and the claimant's two sisters at the Hotel Corfu at Cala D'or in Majorca. They went on holiday on 19th October 1996 for a period of ten days. By the terms of the agreement made between them the defendant agreed that they would be liable for injuries caused by the negligence of its suppliers, in this case the Hotel Corfu.
4. On the last day of the holiday, 28th October 1996, the claimant entered a lift in the hotel with his two sisters who were older than him. The lift was one of a fairly familiar type. There was an outer door which was hinged and an inner sliding door which close automatically when the outer door had been closed. The claimant and his sisters went in to the lift and neither of the doors shut. It appears that the outer door had, for some reason, jammed before it reached its proper resting place in the door frame. Gareth put his right hand round the door and pulled it towards him. The door then shut quickly and caught his right middle finger as a result of which he sustained a serious injury to it.
5. Judge Roach was trying the issue as to liability only. The defendants accepted that they would be liable to pay damages to the claimant if negligence was established against those who were responsible for running and managing the hotel.
6. The defendants initially alleged that the accident occurred because Gareth, the claimant, was playing about in the lift and was unaccompanied. They abandoned that suggestion and accepted that he had been in the lift with his sisters.
7. The claimant's father, Mr David Anthony Codd, gave evidence at the hearing. He said that on days prior to the accident he had noticed that the hinges on the outer door of the lift were worn and he thought the door was dropping and catching on the carpet underneath it. He said that he had noticed that the door on the lift where the accident occurred was heavier than the door on a second adjacent lift in the hotel. Mr Codd had not at any stage made that allegation prior to giving evidence at the hearing, despite the fact that he had met the tour representative and other representatives of the hotel immediately after the accident and had made a written statement through his son's solicitors. It was in those circumstances hardly surprising that judge did not accept that evidence.
8. The accident was reported to Michelle Stevenson, the defendants' representative at the hotel. She gave evidence at the trial. Her evidence has been subjected to very stringent criticism by Mr Griffiths in the course of this hearing. In her evidence at the trial she said that she reported the accident immediately to the hotel staff and that engineers were called in. To the best of her knowledge, although she had no first-hand knowledge in relation to this matter, no fault was found in the lift. Far more important than that was her evidence, as to which she could give direct evidence, that she used this lift and the second lift regularly both before and after the accident without difficulty and found as far as she was aware, there was no fault in the lift or in the door because it was operating perfectly normally. The judge accepted Miss Stevenson's evidence that she had seen that the engineers were called out and that she had used the lift regularly herself after the accident without difficulty. Mr Griffiths submits in detail to which I will have to refer in a moment, that Judge Roach was seriously in error in accepting evidence given to him by that witness.
9. The judge had before him documentation which showed that, in accordance with Spanish law, the lifts at the hotel were examined on a monthly basis by managers. Mr Griffiths has stressed very strongly, and in my judgment perfectly understandably, that apart from the records that the inspections had taken place there was no disclosure from the hotel as to what work, if any, was done on the lifts or as to their state of repair and maintenance immediately before and immediately after Gareth's accident.
10. However, as I said a moment ago, there was clear evidence from Miss Stevenson (and the judge accepted it), that the lifts were working satisfactorily prior to and after the accident and, if they were inspected regularly by engineers in accordance with Spanish law, there was no reason why any inference should be drawn that the engineers or the hotel had failed in their duty to keep the lifts properly maintained.
11. Mr Griffiths is again highly critical of the documents which were produced by the defendants. He submits that the judge should not have placed any reliance upon them at all.
12. On page 11 of if his judgment the judge said in relation to the documents:

"What do I make of those records? I think I can make this of them, that they show, according to Spanish law, because that is the certificate that is upon them, that this lift and this installation was looked at with a frequency of once a month, and that this lift and this system survived that inspection, and was found to be working, by record, adequately and safely."

13. Then a little later on he said:

"I am driven to the conclusion, on the balance of probability, that there was a maintenance system in operation and an inspection system in operation, in accordance with Spanish law, as the certificates indicate."

14. Those important conclusions were conclusions which, in my judgment, on the evidence before him that the judge was entitled to make.
15. The judge concluded that it was impossible to say why the door had closed in the way that it did. He said that there was no evidence to what caused the door to close that way. He said there was no evidence that it slammed shut as a result of poor maintenance or poor inspection by the engineers or the hotel staff. Mr Griffiths has submitted to us that the onus of proving that the accident did not result from the negligence of the hotel or Thomsons was upon them and not on the claimant.
16. In addition to alleging that the accident occurred as a result of the failure to maintain the lift properly, it was alleged on behalf of the claimant that there was no emergency equipment or proper advice in the lift as to what to do if the door did not close, or if the lift failed to operate correctly. The judge said in his judgment that there were no regulations in Spain which required safety signs to be posted in lift or a requirement that there should be an emergency alarm or emergency procedure in the lift if the door did not close or the lift became stuck.
17. There is such a requirement in English law under current regulations governing the installation and use of lifts and we have those regulations with our documentation. The lift did not comply with those regulations but complied with Spanish legislation. In those circumstances the judge concluded that it could not be said that the managers of the hotel were negligent in failing to install alarm devices or instructions as to what to do in an emergency. The judge recorded that the lift performed as a standard unit to lifts throughout Spain. Accordingly he arrived at the conclusion that negligence had not been established against the hotel owners or managers and, in consequence, it was not established against the tour operator.
18. Mr Griffiths on behalf of his nephew has put forward a number of proposed grounds of appeal. Those grounds are supported by what is described as an appendix for the revised grounds and by a skeleton argument. Mr Griffiths addressed us very fully between in relation to each of his grounds. They are these:

"(1) Defence evidence that both lifts were properly maintained prior to the accident was both insufficient and of an extremely unsatisfactory nature. As such it did not merit the weight given to it (see Appendix).

(2) Proper safety procedures were not followed by the defendant upon discovery of the accident. Upon such discovery it is essential:

(a) to ascertain how the injury occurred and particularly whether any feature of the liftwas a cause.

(b) Unless such a possibility can be absolutelyruled out, immediate steps must be taken to ensure no one else uses said feature(s) until inspected by a qualified engineer and certifiedsafe.

Not only is there no conclusive evidence that any of this was done. All of the available evidence indicates none of this was done. Yet Judge Roach it seems did not consider this to be negligence.

(3) The judge persistently impeded, inhibited and prevented proper cross-examination of the sole defence witness.

(4) Judge Roach inexplicably overlooked prime facie evidence of dishonesty by the defence including perjury plus fabrication and falsification of key evidence, not to mention fraud and conspiracy to pervert the course of justice.

(5) Said dishonesty, had it not been overlooked, would have automatically rendered the entire defence evidence/testimony thoroughly unreliable.

(6) Judge Roach having relegated cross-examination of key evidence/testimony to closing argument, manifestly failed to allow himself adequate time to take due account of its content, leading to confusion and ultimately critical error."

19. Mr Griffiths expanded upon those grounds in his oral submissions. He says that the judge impeded proper cross-examination, that he overlooked evidence of perjury and fabrication and that he failed to take proper time to consider the evidence. So far as those criticisms are concerned, in my judgment, there is no substance in them. We have a transcript of the evidence given by Miss Stevenson and of the proceedings at the opening of the hearing and the closing submissions. In my view where the judge intervened he did so in order to clarify and assist and there is absolutely no evidence that the judge did not conduct the trial properly and appropriately and give due consideration to the fact that Mr Griffiths is not a qualified lawyer or advocate, although, if I may say so, he is clearly a skilled advocate.
20. I turn to the more substantive points taken by Mr Griffiths in the appeal. He criticises the quality of the evidence that was presented to the judge as to maintenance. He says that the originals of the inspection were not exhibited and their authenticity and completeness is much in doubt. He says that the copies that were provided were unsafe as evidence and should have been found to be admissible. He says that the inescapable conclusion is that the defendants were withholding evidence.
21. There is again, in my judgment, no evidence at all to support the submission that the defendants were in this case deliberately withholding material documents. Until very late in this case the claimant was represented by solicitors who were in a position to ask for further documentation if such was required. There is in my view some substance in the criticism as to the quality of the documents but there is nothing in the case which suggests to my mind that any documentation was deliberately withheld. The evidence which the judge accepted, particularly the evidence of Miss Stevenson tended to show that indeed the lifts were regularly inspected and maintained and were in good and proper working order at the time. As I indicated, Mr Griffiths makes stringent criticisms of Miss Stevenson's evidence and the judge's approach to it. The substance of the submission is that it is plain that she was lying and the judge should, in total, have rejected her evidence. In my view, the judge having heard her evidence was perfectly entitled to accept it if he accepted that she was by telling him the truth as she recollected it.
22. Mr Griffiths then submits that the judge was in error in not applying the British standards to this particular lift in the hotel in Cala D'or with the result that there was a breach of duty according to English law. That is not a correct approach to a case such as this where an accident occurred in a foreign country. The law of this country is applied to the case as to the establishing of negligence, but there is no requirement that a hotel for example, in Majorca is obliged to comply with British Safety Standards: see Wilson v Best Travel Limited [1999] 1 All ER at 353.
23. Mr Griffiths then goes on to criticise the safety procedures which were present in the lift at the time when this accident occurred. I have already dealt with the safety procedures so far as the lift itself is concerned, but Mr Griffiths relies upon the fact that there were no instructions in the lift as to what to do in the case of an emergency. In my judgment the judge was entitled to find as he did that there was no requirement by the regulations then in force in Spain to have in place any further instructions other than those which were present.
24. This is not a case in which, in my view, it is appropriate to say that the hotel or the tour operator is liable for this accident without proof of negligence. In order to succeed the claimant must prove that the hotel management was negligent either in relation to the maintenance of the lift or in relation to the safety procedures. In my view despite Mr Griffiths' submissions the judge approached that question in a proper manner. He was entitled to conclude on the evidence that it was not established that the hotel management was negligent in any of the facts alleged and I would accordingly and for those reasons dismiss this appeal.
25. LORD JUSTICE BROOKE: I agree and I only wish to add a few words in relation to the first ground of appeal. There appears to me to have been a difficulty which arose from the fact that solicitors were acting for the claimant until just before the trial, and we have the notice showing the way the solicitors came off the record with effect from 20th May 1999 when the trial started.
26. The County Court Practice, with which those solicitors would have been very familiar, provides arrangements which will be known to every lawyer who is concerned with litigation in relation to documents which are going to be used in litigation. They provide a procedure by which if copy documents are produced the solicitors can require to see the original. These procedures, which add to the costs and often to the delay of litigation were devised so that problems relating to the authenticity of documents were not taken for the first time at the trial of an action when they would be likely to lead to further delay and adjournment. Strictly speaking, the lift maintenance records were not documents in the possession, custody or power of Thomsons themselves, but rather the evidence for a third party which they were going to wish to call in relation to issues in the case. It is clear from the correspondence, however, that solicitors asked to see them, and they were treated as though they were discoverable documents and no request was made to see the originals.
27. Mr Griffiths understandably takes the point that even when this happened in October 1998 two of these inspection records were not produced and they were not produced until shortly before the trial. The hotel manager gave his evidence by a statement which was served under the Civil Evidence Act before the solicitors came off the record and they would have been familiar with the procedure for challenging notices under the Civil Evidence Act. This was how it came about that the judge was satisfied that the evidence was admissible before him. How much weight it had was very much a matter for him.
28. I have considered Mr Griffiths' submissions in his appendix very carefully particularly because he takes the point that although he made a number of points to the judge, the judge did not refer to them expressly in his judgment. But I have read carefully the way in which the judge was concerned about the quality of the documents which were produced in the course of his judgment, and he appears to me to have been appropriately cautious in the way that he approached them. He was entitled on the evidence to come to the conclusion on the balance of probabilities there that was a maintenance system in operation and an inspection system in operation in accordance with Spanish law as the certificates indicate. He said he had been alive to the criticisms that Mr Griffiths made and had given them full account but he thought on the evidence he was in a position to accept on the balance of probabilities that there was that system.
29. The judge would have been aware that Mr Griffiths as a layman who, if I may say so, made an admirable address for his nephew as a lay advocate in court, would not have been aware of the procedural matters to which I have referred. In my judgment, although there were unsatisfactory features of the documentary evidence, the judge was entitled to treat the documents as properly in front of him in the light of the procedure which had occurred, and to reach the conclusions that he did.
30. For these reasons, and for the reasons given by my Lord, with which I agree, I agree that this appeal should be dismissed.
(Appeal dismissed; appellant to pay £1,500 on account of costs).