England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND A STAY OF EXECUTION

		Royal Courts of Justice Strand London WC2 Friday, 16th March 2001

1. LORD JUSTICE SEDLEY: This is a renewed application for permission to appeal in a case which, on its face, was of the simplest kind but has acquired complications like barnacles in its passage through the courts. It arises out of a midnight cross channel ferry trip made on the night of 2nd/3rd December 1995 for the purpose not so much of reaching France as of buying duty-free goods on the outward and return trips.
2. The claimant, with his parents, paid £1 each to go on the trip. They found when they reached Calais - no doubt for important reasons of international comity - that they were required to disembark and be taken by bus to the ferry terminal before returning to the ferry for the acquisition of further duty-free goods. The judge found that the claimant slipped on a raised door-stop which ought not to have been there as he alighted from the rear door of the bus, and hurt his back. The claimant initially sued the first defendant, the ferry company, and then joined the second defendant, the French bus company, which by its defence admitted that it was the first defendant's provider of buses at the material time, pursuant to a contract not with the first defendant but with a third party intermediary.
3. In the proceedings following amendment the first defendant made a Part 20 claim against the second defendant, but this had been compromised by time of trial, and the second defendant's counsel, Mr Weddell, represented both parties at trial. He has had the conduct of this application since. I express my indebtedness to him and those instructing him first for a well organised and well presented bundle; secondly for a lucid and orderly skeleton argument; and thirdly for well directed and helpful submissions this morning.
4. By the date of trial the claimant's legal aid had been withdrawn, apparently because his counsel and solicitors took a dim few of his chances on the merits. The defendants by then were questioning, with some confidence, whether the claimant had been on the ferry at all and, if he had been, whether he had done anything to his back. It will have therefore come as something of a shock when in the first judgment, confined to findings of fact and given on 31st July 2000, Judge Darlow, sitting at Southampton County Court, believed and accepted the claimant's account in its entirety and in a further judgment, following further argument, determining the question of liability on 4th December 2000, found the defendants 100 per cent to blame and liable to pay in full damages which remain to be assessed.
5. The defendants now renew their application for permission to appeal, permission having been refused on paper by Sir Murray Stuart Smith.
6. The judge's findings came down to these. First, the claimant was a truthful witness even though some of his evidence had been misremembered or transposed. Secondly, the first defendant had contracted to carry him in reasonable safety to the ferry terminal at Calais. Thirdly, the bus which the first defendant provided was not reasonably safe. It had, as by common consent it should not have had, an exposed door stop on which the claimant slipped and hurt his back.
7. This simple dispute - and that description comes from Mr Weddell's skeleton argument - was complicated by a number of issues. First, the defendants, particularly the second defendant, put in issue whether the claimant had been on the trip at all. They had good reason, on the basis of the material furnished to their solicitor and counsel, for raising such a challenge but it turned out that the material was deficient in ways I will deal with later. If the claimant had been on the trip, a query was raised whether the bus which he identified could possibly have been the second defendant's bus. Then there was a question whether, if it was the second defendant's bus, it could possibly, in view of its maintenance history, have been in the condition that the claimant alleged. There was a question about what duty either defendant owed to the claimant in law. There was a further question of the second defendant's relationship with the first defendant which was not resolved by their compromise of the Part 20 proceedings. There was an over-arching issue as to whether the claimant's credibility was destroyed not only by some of the matters I have adverted to but by his medical records which were deficient in any account of the accident although they confirmed subsequent back trouble. Of these issues, those which were factual were resolved by the judge in the claimant's favour, astonishing as it may have seemed to the defendants that this would happen. Litigation, like life, is full of surprises. As Mr Weddell recognises, some you win, some you lose on the facts, and this is one that the defendants lost on the facts.
8. So far as the complications concern questions of law, for reasons I now turn to they do not affect the determinative issues in the case.
9. The first of Mr Weddell's grounds is that the judge failed to apply the correct standard of proof in deciding whether the claimant had the accident on the second defendant's bus. The judge, in the material part of his judgment, said:

"I therefore find the evidence of the Lazells preferable. I cannot say why it was or precisely how it was that the doorstop was still in place (or whether it was the fact, for some reason or another, that it was not one of their buses - I doubt that - I suspect it was one of their buses, but it was one of their Sealink buses on which the work of removal of the doorstop had not in fact been carried out) and it was on that that Mr Lazell in fact sustained his injury."

10. The short answer to this complaint, in my judgment, is this. It was not necessary, given the pleaded issues, to decide whether if the claimant was transported from the ferry to the terminal on the night in question it was one of the second defendant's buses. By the pleadings this was made common ground. What this issue went to was the claimant's credibility, because he had subsequently identified a different vehicle. This was something on which thedefendants quite legitimately relied in challenging his credibility. The point however was that if Stena, the first defendant, had failed to provide safe transport to the terminal in breach of their duty of care to the claimant, then whoever the owner or operator of the bus was, Stena were going to be liable. If they had not so failed, then there was going to be no liability.
11. The second ground of challenge is that the judge failed to accord proper weight to the evidence of the second defendant that the door-stop had been removed prior to the date of the claimant's alleged accident. It is apparent from the formulation of the point that it is essentially a challenge to fact finding, and any appellant who makes such a challenge assumes a considerable burden. The judge concluded that the door stop cannot have been removed simply by virtue of his acceptance of the claimant's evidence that it was upon such a doorstop that he stepped and slipped.
12. The second defendant's evidence which can be found at page 21 of the first judgment was given by a Mr Bouan, who claimed to recollect doing the particular job. For reasons which Mr Weddell has suggested are to do more with the quantity than the quality of evidence, but which I am clear is to do with its quality, the judge accepted the evidence of the claimant and his parents and rejected that of Mr Bouan. Mr Bouan's own credibility did not seem to the judge to be high given what he claimed he could remember compared with what he could not later remember.
13. Mr Weddell goes on to argue that the evidence of two other witnesses on the French side was overlooked, that of M Fournier and that of Mr Pierru. Neither of those witnesses was able to say more than that they had given instructions for the door-stop to be removed. Since it was common ground that it should have been, the real question was whether it had been. As to that, the judge did deal precisely with the evidence that went each way and gave his decision in the claimant's favour on the basis of the comparative quality of that evidence.
14. The third ground is that the judge erred in law in finding that there was an implied term that the first defendant would exercise reasonable care and skill in ensuring the claimant was safe on the bus. Mr Weddell points to the judge's formulation that the implication of such a term must be "necessary, obvious or reasonable". It is quite true that mere reasonableness is generally not enough, although the word "reasonable" is a word of many registers. It was, as Mr Weddell candidly accepts, patently obvious and patently necessary that if there was a contract of carriage between the claimant and the first defendant, the first defendant must exercise reasonable care in handing over the claimant's transport to a third party, in this case the second ddefendant. That does not make the ferry company the guarantor of the claimant's safety, and the judge did not suppose that it did. Equally, as Mr Weddell accepts (and this will have a bearing on the subsequent points advanced as grounds of appeal) it is not enough for a British tour operator or carrier simply to check that local standards have been complied with without checking what those standards are. Compliance with standards that are obviously deficient can be no better a discharge of the duty of care than failing to check whether the standards have been complied with at all. All of this Mr Weddell accepts in the light of the decision of Mr Justice Phillips in Wilson v Best Travel Ltd [1993] 1 All ER 353, a decision which came to his hand rather closer to the trial date than counsel would have wished had there been time for prior research. But it was before the court below and I do not think it presents any problem of law. The term that the judge found, so far as material, was a necessary implication of contract.
15. Fourthly, Mr Weddell urges that the judge went wrong in finding that the second defendant was the agent of the first defendant. For the reasons I have given, and as I think Mr Weddell is now disposed to accept, this is simply not an issue in relation to liability in the case. Once the contribution claim between the first and second defendants had been compromised, as ostensibly it had been, and once they had joined in their defence, it was enough that the first defendant was liable for breach of the implied contractual duty of care.
16. That brings one to the fifth ground, which is that the judge erred in finding that the door stop was dangerous and in refusing to admit evidence as to whether the bus satisfied local safety standards. This is two submissions in one. The first part cannot be right. If the door-stop was there, and the judge found it was, then manifestly it was dangerous. The parties themselves were at one about this, since it was the defendants' own case that it should have been and had been removed.
17. The second element in this ground is the judge's refusal to admit evidence as to whether the bus satisfied local safety standards. There was before the court - and it is an important part of the judge's findings - the report of a joint expert which went the claimant's way on safety issues; hence the finding I have mentioned. There was further evidence which Mr Weddell now wanted to lead in reliance on Wilson v Best Travel Ltd to show that the bus in question, if it was being operated that night, had passed a test known as the Mines test, a French safety test. This was designed to demonstrate that any liability that otherwise rested on Stena Line had been discharged by taking all reasonable care. The judge refused to admit this evidence because it was tendered late. It is essentially for a denial of natural justice involved in that refusal that Mr Weddell seeks permission to appeal.
18. While the judge could legitimately have granted an adjournment, he had case management duties. He was entitled to take the view that to admit the evidence that the Mines test had been passed would not conclude the case but would open up a further line of inquiry as to what the content and standard of the Mines test was. Without that knowledge the Wilson v Best Travel test cannot be applied. The claimant, who was by now in person, would have been thrown on to his own resources in an attempt to deal with what was going to be a complicated issue. It seems to me in the end that the judge'sexercise of discretion in the decision he took was one within his powers and not capable of being impugned upon appeal.
19. Lastly, Mr Weddell seeks permission to appeal on the ground that the judge erred in awarding indemnity costs to the claimant against the defendants. This is the issue which has given me the most pause. Essentially the defendants were penalised by the judge for running the defence - which was not abandoned until the eve of trial - that the claimant had not been on the ferry trip at all. The materials available to Mr Weddell and those instructing him entirely justified him, as a matter of professionalism, in running this challenge. It would have been mealy-mouthed of them to saythey were only putting the claimant to proof when the fact was that it was believed that he had not been on the trip at all. But a further computer search suggested by the judge last year produced the information that the claimant had been on the trip. The real problem about the award of indemnity costs is not the period of time in which the claimant was in person. That means next to nothing in the way of costs. It is a fact that the judge, by failing to differentiate, allowed the award to be back-dated to the initiation of proceedings, a period which included a time when the defence was not yet being run.
20. The judge could certainly well have differentiated between those two periods of time. But costs orders do tend to be rounded orders, particularly in the County Court. They are not expected to be adjusted with a razor. Although I am nevertheless troubled by the judge's decision, I have no information, despite my asking for it, about the quantified implications of the order. I do not think on balance that it is an appropriate issue, given the discretionary nature of costs, to form the single ground of appeal. It is another of the hazards of litigation with which the defendants will have to live.
21. Expressing my gratitude for the submissions, I refuse permission to appeal in this case.

Order: Application refused