England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
GLOUCESTER DISTRICT REGISTRY
(Mr Recorder Tackaberry QC)

		Royal Courts of Justice Strand London WC2 Monday, 26th February 2001

1. LORD JUSTICE HENRY: This is an appeal from Mr Recorder Tackaberry QC, who, on 8th September 2000, in a split issue personal injuries trial, found for the claimant, Mrs Newman, on the issue of liability.
2. The matter arose in this way. The claimant, Mrs Newman, was not long back at work as a chef in one of the defendants' Beefeater public houses when, walking through the premises, she fell on an internal short flight of four stairs in a public part of the building. Mrs Newman was not able to throw much light on how the accident happened. She could not remember. She remembers being at the top and then falling, after which she found herself lying on her back. She was looking back about four years when she gave her evidence.
3. She brought an action for breach of statutory duty and negligence against her employers. The case against her employers was founded on the only unusual feature in relation to her fall, namely a technical non-compliance with regulation 5(1) of the Workplace (Health, Safety and Welfare) Regulations 1992. That was that the short staircase was non-compliant in that the measurements of the staircase showed that, in the words of the judge, it was slightly "distorted": it was slightly twisted, and the handrails were at different heights to each other, but that did not matter because the stairs were too wide for someone to be able to hang on to both at the same time.
4. The way - and, effectively, the only way - in which her case was put at the trial was as summarised at paragraph 12 of her counsel's skeleton, which said:

"The construction of the steps was such they did not accord with British standards. There had been a number of previous accidents on the steps and the variation in the risings and goings was such as to lead to a serious risk that an accident would occur which in the event of the claimant did occur."

5. That way of putting the case came to nothing. The judge, as I have said, found that the stairs were distorted and twisted, with their handrails at different heights, but he found that those differences were small. He found that it was an old building and that no one regarded those matters as being noticeably abnormal. Customers and staff had fallen there, but such incidents were extremely rare, and the judge did not read anything into that. Mrs Newman, who had just returned to work after a road traffic accident, said that she had managed those steps without real problems, although she was a woman who was somewhat overweight.
6. The judge ultimately was to find that none of the differences in the measurements of the goings and the risings or in the level of the handrails made any difference. There was no question of lack of familiarity or bad lighting. In relation to those matters, he had this to say:

"Turning to the issue of liability, I accept that Whitbread make a powerful point when they emphasise the history of little in the way of accidents over a period of eight years, despite heavy trafficking. It is also the case that people do stumble and fall on stairs without fault on the part of the owner of the stairs.

What is more, I do not think that any of the particular differences in the goings and risings and in the level of the handrails made any specific contribution to Mrs Newman's accident. Nor indeed does the absence of any warning notice about the stairs seem to me to be relevant to this case. Further, in the present case it does not seem to me that any question of lack of familiarity arises nor that there is any real issue about inadequate lighting.

Rather, it seems to me that the problem here is that stairs that were perfectly satisfactory for most of the people that were using them ...."

7. I stop there in mid-sentence because those findings were destructive of the case as argued and pleaded.
8. But the judge then embarked on an unargued case for Mrs Newman which he himself put forward. I will start again from the beginning of the sentence that I interrupted:

"Rather, it seems to me that the problem here is that stairs that were perfectly satisfactory for most of the people that were using them were unsatisfactory for Mrs Newman. This case is simply a question of an infirm person using familiar stairs. That is a situation which the British Standard identifies as one of particular risk.

To some extent Whitbread had recognised Mrs Newman's infirmities in agreeing that she would not have to carry awkward or bulky loads; ..."

9. [It was said in evidence that there was a "gofer", as he was called, to assist her in these matters.]

"... but I do not think that this took sufficient account of her physical constraints. I do not think that she should have been going up and down elderly and somewhat distorted steps in her physical condition. Indeed the method that she chose to use - holding onto the bannister and making sure both feet were on the previous step before venturing to put a foot on the next step - highlights the unsuitability of the situation for a woman with her disabilities.

Putting it another way, when Mrs Newman returned to work - under protest, I believe I was told, although this seems to me to be irrelevant - in the special circumstances of this case Whitbread should have taken into account the physical restrictions of Mrs Newman. Had they done so they would presumably have reached the conclusion either that it was necessary to find her other employment or that it was necessary to employ measures to ensure that she could manage the stairs in question. The grill and snack chef job, involving as it did much traversing of these steps without any special arrangements, was quite inappropriate."

10. The judge then referred to the duty of care under the Occupiers Liability Act, and concluded:

"In determining whether Whitbread failed to discharge this duty, I remind myself of the experts' joint note of areas of agreement and disagreement.

a.I note that they agreed (point 5 under Areas of Disagreement) that the fall occurred as a result of Mrs Newman misplacing her foot as she walked down the stairs.

b.They disagreed as to whether the distortion in the steps was a factor in the fall or not. I think that it probably was, but that it was a minor element, making a small contribution to the problem.

c.They disagreed as to the public or semi public nature of the steps - as to that, I am with Mr Evans and accordingly the higher slip resistances are the appropriate ones. Again, it seems to me to be likely that the slip resistance of these stairs was insufficient for a person with Mrs Newman's disabilities, and that on the balance of probabilities this made a small contribution to the accident.

d.But most importantly, it seems to me that Whitbread should have taken Mrs Newman's physical problems into account. So far as Mrs Newman is concerned, I agree with Mr Evans on point 6 of the Areas of Disagreement."

11. Point 6 of the Areas of Disagreement represents a fundamental disagreement between the experts, which had not been thought to be relevant for the trial in that the district judge had disallowed the experts being called on this matter. Point 6 reads:

"Although it is agreed that Mrs Newman may have had a restricted neck movement and potentially limited field of vision, there is a difference of opinion regarding the consequences. Mr Evans is of the opinion that the employers should have taken into account Mrs Newman and other persons who may use the stairs. Dr Lipczynski is of the opinion that it was Mrs Newman's responsibility to observe where she was placing her feet."

12. The judge concluded:

"Mrs Newman was invited to return to her job as a grill and snack chef. Given the physical characteristics that she had developed after the first accident, it was for Whitbread to take such steps as might be necessary to ensure that she would be reasonably safe while carrying out that work. Requiring her to mount and descend the small staircase without any additional assistance, (which would not be necessary for able bodied persons using or working in the King's Arms) amounted in my view to a failure to discharge this duty. It seems to me that this would have been the case even if the staircase had been in accordance with the British Standard - but the inadequacies of the staircase made a poor situation worse."

13. That case, as constructed by the judge, had not been argued at all at the trial. There is a dispute between the parties as to whether it was technically open on the pleadings. In relation to that, by taking a piece here and a piece there, it is possible to construct the framework at any rate of that pleading. In the statement of claim it is broadly alleged that the defendants failed to accord the claimant the duty of care owed to her as a lawful user of the premises; that they failed, by warning sign or otherwise, to notify her and other users of the stairway that the risings and goings were not of uniform size and were therefore not in a safe condition; that they failed to carry out any proper or appropriate assessment of the dangers or risks involved within the workplace caused by a staircase where the goings and risings were not of a uniform size; that they failed to carry out any or any proper assessment of the work undertaken by the claimant and the risks inherent in that work, and further failed to provide such advice, warnings or replacement of the dangerous with the non-dangerous, so as to deal with those risks; and - a catch-all - that they failed to take all or all reasonable care for the safety of the claimant.
14. There were apparently two medical reports before the trial judge. No doctors were called on the issue of liability and, from the fact that those two reports were not copied for this case on appeal, we can safely infer that those reports did not help at all in regard to the way that the judge put the case.
15. So far as the experts on each side were concerned, Mr Evans, the expert engineer for the claimant, said this at paragraph 5.23 of his report:

"I understand that Mrs Newman had been off work and only recently rejoined Whitbread a few days before her accident. Her employers were aware that she had suffered a serious road traffic injury and that she would be more prone than a fit agile person to slips, trips and falls and yet they took no remedial action, even knowing that she would have to transgress or pass over the staircase numerous times on every shift."

16. That was his contribution to what was the area of disagreement leading to Areas of Disagreement point 6.
17. Dr Lipczynski, for the defendants, said at paragraph 5.5 of his report:

"The Medical Report also states that as a result of injuries sustained in a road traffic accident on 2 April 1994, Mrs Newman, on her return to work at the Kings Arms in January 1996, was apparently far from fit and appears to have been suffering from a stiff neck. In this regard and although my views should be considered as speculative, I believe that Mrs Newman's restricted neck movements and potentially restricted field of vision may have prevented her from observing where she was placing her feet as she walked down the stairs."

18. As I say, the inference is that neither of the medical reports dealt with that last point in any way at all.
19. Mr Stead was appearing for the defendants. His complaint, as ably put before us by Mr Edwards for the appellants today, was that the claimant's case had never been put that way. If her case was going to be put that way, then, when the district judge ordered that the experts should not give evidence, it would have been incumbent on the claimant to point out that it was one of the ways that her case was being put that Mr Evans was right and that, for some reason connected with looking downwards, it was unsafe for this lady to use those four stairs. But the order was made that those witnesses should not be called and that order was not appealed.
20. This case was not put in cross-examination. It was not referred to in the evidence called, and no expert evidence, for the reasons given, was called. The case was not opened in the way that the judge found; and nor did it find any part in the closing submissions of counsel for the claimant. It was not put by the judge to counsel. It therefore came as a surprise to Mr Stead. He did not have the opportunity of dealing with it and, whether pleaded or not, it had simply not been a live issue in the case.
21. Mr Edwards referred us to Waghorn v George Wimpey & Co Ltd [1969] 1 WLR 1764. The facts in that case were that an employee had slipped at his place of work. It was pleaded that that slip took place at a certain position. It was found to have taken place at another venue altogether, but which had in common with the first venue that both were slippery places. The pleading, however, was adamant that it was at the first venue. Geoffrey Lane J (as he then was), at p.1770H, said this about it:

"In the present case Mr Archer contends that the true version of the facts [i.e. where it had happened] is just a variation, modification or development of what is averred, and is not something new, separate and distinct.

The only similarities, however, between the plaintiff's allegations in his pleadings, the way his case was presented, and what in fact took place were these: first of all, the plaintiff slipped; secondly, he slipped at his place of work; and thirdly, he slipped somewhere near a caravan, when it is alleged that he did slip somewhere near a caravan. But the whole burden of the claim put forward by the plaintiff, and the whole burden of the defence to that claim prepared by the defendants and put forward on their behalf by Mr Machin, has been the safety or otherwise of the bank, and not the safety or otherwise of the path at the right-hand side of the caravan, where it runs alongside the dip.

In my judgment, this is not a case which is just a variation, modification or development of what is averred. It is a case which is new, separate and distinct, and not merely a technicality."

22. Having concluded that it was not a technicality, the judge continued:

"One must test the plaintiff's submissions in this way: if these allegations had been made upon the pleadings in the first place, namely allegations based upon the facts as they have now emerged, would the defendants' preparation of the case, and conduct of the trial, have been any different? The answer to that is undoubtedly `Yes'. Evidence would have been sought as to the safety of the pathway alongside the caravan; as to the frequency with which it was used; as to the position of the valve under the caravan. ... If the plaintiff's case had been pleaded to the effect that it was whilst he was on his way to that valve that he had slipped, then the preparation of the case would have been entirely different and its presentation would have been different."

23. I test the submissions put forward by Mr Edwards against the Waghorn test and ask whether the defendants' conduct of the case would have been any different. If the issue had been raised, the defendants would have obtained and called medical evidence as to the claimant's ability to cope with the stairs safely and would have addressed the problems of the nature of the duty owed to her. Their engineering expert would also have had to go into this in considerable detail, not just as he did.
24. The proof of the pudding effectively lay, as I have said, in the fact that the denial of the application to call experts was not appealed and the fact that the claimant never put her case in the way that the judge finally found it to be. That plainly was unfair to the defendants and it is clear, in my judgment, from that that this judgment must be overturned because of the element of unfairness to the defendants in it.
25. I then come to what is the more difficult point in this case, namely should the result of that be judgment for the defendants or a new trial? The principle is that it is the duty of a claimant to advance all linked causes of action and alleged breaches of duty at the same time at the trial. This was a totally new case, introduced by the judge only in his judgment, with no party to the case having any inkling of what was going to happen. The case was not the claimant's case. It was the judge's own construct. It was not a case where a prima facie case was established on the evidence. It was a case that could not be successfully run without medical and engineering evidence being called and heard on each side. We still do not know (because no one has obtained, or even found out whether it is now possible to obtain, reliable medical evidence) about the state of this lady's neck before the accident at the beginning of 1996, already five years ago. There is simply no establishment of a prima facie case against the defendants here.
26. In my judgment it is simply too late now to embark on a trial as to medical conditions in 1996, where there is not even a prima facie case. If it had been a serious part of the case before the judge, then no doubt such medical evidence would have been produced. We are here asked to order a new trial on what is no more than an assumption that there would be a prima facie case. That assumption is simply too remote and it would be too prejudicial, now five years later, to start on an investigation of this somewhat complex case that the judge found, none of that work having been done up till now. Accordingly, I would not order a new trial of this case and would simply give judgment for the defendants.
27. LORD JUSTICE BUXTON: I agree. There is nothing that I wish to add.
28. SIR SWINTON THOMAS:I also agree.
Order: appeal allowed with costs and judgment given for the defendants; any application for an order for the payment of costs by the Legal Services Commission in respect of the proceedings in the Court of Appeal to be determined by a costs judge in accordance with regulation 10 of the Community Legal Services (Costs) Regulations 2000; public funded costs assessment for the claimant. [DOES NOT FORM PART OF APPROVED JUDGMENT]