England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MAIDSTONE COUNTY COURT
(Mr Recorder Pratt)

		Royal Courts of Justice Strand London WC2 Monday, 1st July 2002

Monday, 1st July 2002

1. LORD JUSTICE POTTER: This is an appeal by the defendants from a decision of Mr Recorder Pratt, sitting in the Maidstone County Court on 11th September 2001. On that date he gave judgment for the claimant against the defendant in respect of personal injuries suffered on 30th March 1996 when the claimant was in the employment of the defendants as a heavy goods vehicle driver, a job which he had only obtained a week earlier. He slipped on the forecourt floor near the fuel pumps on the defendant's premises as a result, so he alleged, of the presence of diesel oil in the area in which he had to walk in order to refuel his own vehicle. The judge having found for the claimant on the issue of liability on 11th September 2001, judgment was entered on that date for damages to be assessed. The judge subsequently assessed the amount of the damages on 19th September 2001 in the sum of £171,027.
2. The original trial on liability did not start auspiciously for the claimant. His pleaded case and his witness statement, exchanged prior to trial, had referred to the fuel pump island on the defendant's forecourt, up to which the claimant had driven for the first time in order to refuel, as "awash with diesel fuel". According to his witness statement, the claimant had then climbed out of his cab, removed his fuel cap and turned to take hold of the fuel pump. When he placed his right foot on top of the anti-ride kerb beside the pump and surrounding it, it slid down the kerb away from him to the ground, causing him to fall awkwardly. He said there was were no witnesses, and the yard supervisor had gone back to his gate house by this time. The injured claimant managed to hop over to the gatehouse and ask for ice to relieve the pain. There, one of the managers, whose name he did not know, came to the gatehouse and arranged for the claimant to be transferred to hospital.
3. When the claimant was called as a witness, however, his story had changed, or at any rate was elaborated, in a significant and entirely unheralded manner. He said that prior to the incident, having completed his deliveries in his vehicle and driven back to the defendant's premises, he had noticed the contamination of the floor of the forecourt on his arrival at the gatehouse, some way from the pumps, and told the person at the gatehouse that he did not like the look of the fuel pumps which were "awash with fuel". The man told him that if he did not refuel, his docket would not be signed and he would not be paid, whereupon the claimant said, "Right, I will do it", and he did. The case was adjourned for the defendants to trace the yard supervisor for that shift and to obtain a statement from him.
4. As a result of receiving the evidence of the supervisor (a Mr Hughes), and hearing his evidence together with the evidence of a number of witnesses who were employees of the defendants, the judge said in his judgment following the resumed hearing of the case:

"3.My preliminary view of the evidence on the last occasion was that its omission from any earlier statement, or indeed in the pleadings was such as to cause me to entertain grave doubts as to its accuracy, and indeed cast a shadow over the general credibility of the claimant's evidence. However, today I have heard from Mr Hughes and read witness statements that he has provided, not only for the claimant, but also for the defendant. He was a witness who I found to be of considerable assistance in determining the factual issues of this case, and he confirmed that, although he had no specific recollection of the claimant making a complaint to him, he did acknowledge that he possibly could have said words to the effect that if the claimant did not refuel his docket would not be signed and he would not be paid. As he said to me, that was the fact, and he may well or possibly have said it. He also said in his witness statement provided for the claimant (the content of which he has confirmed on oath) that it was common, as he put it, for drivers to complain to him about diesel and oil spillages on the floor around the pumps, `and if the claimant had mentioned it to me, as he may well have done so, that would not be unusual. It was very common for such complaints to be made.'

4.So on the full hearing of the evidence on this matter I am persuaded that my preliminary view of this particular evidence was not correct and I am satisfied on the balance of probabilities that the conversation between Mr Holt and Mr Hughes took place in the terms that Mr Holt has described to me."

5. That was plainly a view upon the evidence which the judge was entitled to take and with which this court could not properly interfere.
6. As to the claimant's contention that the area around the pumps was "awash with fuel" and his further evidence that it was not draining down the drainage gully provided but covering the whole area round the pump where he refuelled, the judge said this:

"7.Again, at first sight I tended towards the views which were expressed that the description of events almost bordered on the implausible. However, I have since heard evidence from the employers, or past employers, of the defendant, Mr Walmsley, Mr Coates and indeed Mr Hughes, who had heard the description of the state of the pumps given by Mr Holt. None of them gave evidence as to the condition of the pump on that particular day but they did provide general evidence, and were seemingly unsurprised by the description Mr Holt gave.

8.In so far as Mr Holt appeared to be suggesting that the sum total of the liquid was diesel oil then I accept Mr Little's submission that his evidence was in the nature of impression rather than evidence of scientific analysis as to the true components of the liquid. The impression that he would see from the liquid would be an impression that it certainly contained and was contaminated with diesel oil. It may well be that as to the precise extent and volume of the substance there, his recollection of that is now not entirely accurate, particularly in the sense that he said that it was not going down the drainage gully, but nevertheless I am satisfied that his impression that the area was wet and that it was akin to a surface that had been subject to a heavy downpour of rain is not entirely inaccurate. I am fortified in accepting his evidence as being generally correct in that regard by the evidence of the general condition of the premises at this time which I have heard from the employees and former employees to whose evidence I have referred. Indeed, in addition to those witnesses, Mr Hill, called on behalf of the defendant and a former manager of the defendant's, indicated that he was familiar with the practice of drivers; using a hose-pipe to hose down windscreens and sometimes the side windows of their cabs. I have seen the hose-pipe, it is shown beyond fuel pump one in the photographs, and it seems to me therefore that he adds to the general picture of the surface of this particular area being frequently and regularly contaminated at least with water which has been used to clean windscreens, and on my finding inevitably that there would be frequent and regular contamination of that water by the presence of diesel.

9.... So it does seem that there may have been a multiple set of factors which caused diesel to accumulate in this way, some of them entirely innocent, others the product of carelessness by drivers and therefore it seems to me that the evidence of people who knew the area, worked in it, over that period of time, as I indicated, not only provides some valuable insight into the system of cleaning, to which I will turn a moment, it also in my judgment lends plausible corroboration to the account given by the claimant.

10.I also say by way of addition that it does seem to me, although no direct medical evidence was given on this point, that the nature of the injury and the violence of the slip would certainly sit hand in hand with a slipping injury ... .

11. So, that said, it seems to me that the claimant establishes that the cause of his accident was that he slipped on a substance which had formed in a place in his place of work ... ."

7. Thus, here again the judge explained carefully the basis on which he reached his conclusion that the surface of the area of the pumps was slippery by reason of a mixture of oil and water and that it was that state which caused the claimant to slip. He went on to hold that the area concerned was a place of work subject to the Workplace Health Safety and Welfare Regulations, as well as premises in respect of which the defendant's owed the claimant the common duty of care provided for in the Occupiers Liability Act 1957.
8. The judge then examined the system of inspection and cleaning which the defendants provided at the premises, insofar as they did so, and said this:

"13.Having heard all the evidence in the case, the only system of inspection and cleaning that I can say with any confidence prevailed at the time (in March 1996) was that on a weekly basis, and probably on a Sunday because that was the recollection of at least two witnesses, an outside agency, a firm of industrial cleaners it seems, whilst they were engaged in the washing of the vans and lorries, also undertook to clean the area. It may well be that they used some industrial cleaner and hosed the place down generally, and that happened on a weekly basis. It was said to me, but I could find little evidence to support this, that any other spillage that may from time to time arise would be dealt with on an ad hoc basis by people clearing it up."

14.If the system of cleaning and inspection is confined to a weekly event, that has to be measured, it seems to me, against the kind of work and the kind of traffic which would be present at this site and I have heard evidence that as many as 120, 180 visits on any day could take place at varying pumps. Of course, not all of those are to pump one. Of course, not all of those involve drivers hosing down the wagon and, of course, it will vary presumably at various times during the day, but a picture forms of the amount of times that diesel is being put into fuel tanks and the likelihood, it seems to me, of even small minute spillages accumulating and growing unchecked and uncleaned."

9. The judge found the cleaning systems to be inadequate, and no issue arises upon that in this appeal.
10. He went on to consider the question of contributory negligence, and found none. In this respect he stated:

20.... whilst I have no doubt that the claimant was aware that the area was dangerous because of the presence of slippery substances, once he had effectively been told that he had to go and refuel or he would not be paid, he was under a form of threat that reasonably made him want to discharge his duties as quickly as he could have done, and nothing in the description that he gave of how he set about that task, in my view, gives rise to a sustainable argument that he failed to take all reasonable care for himself. Accordingly I find against the defendant insofar as it alleges that this accident and subsequent injury was contributed by any action or failure on the part of the defendant."

11. In the face of that apparently logical progression to a comprehensible conclusion based almost entirely on the judge's assessment of the credibility of the witnesses, what are the grounds of appeal in this case?
12. The first and the principal matter argued upon this appeal by Mr Walker QC is that in the light of the way in which the case was pleaded in the claimant's statement of case and his assertion in evidence as to the area being awash with diesel (with no mention of water being involved until a late stage of the evidence) the judge should not have found that the claimant slipped on a mixture of diesel and water. To do so was to make a case for the claimant which he was not really advancing. I do not accept this for one moment.
13. The extent to which a judge can, or should, take the course of finding for a claimant whose story has changed or whose account the judge does not wholly accept is something of an old chestnut in personal injury cases. If a claimant advances a set of circumstances or a mechanism for his accident which the judge is satisfied is false or at any rate totally unreliable, then that is one thing. The judge should not then, because of his view that he does in fact know how the accident occurred which, although differing from the claimant's account, is nonetheless consistent with liability, give judgment on the basis of a finding to that effect. On the other hand, it frequently happens that a judge is satisfied that the circumstances recounted by the claimant are broadly correct and that the accident happened much as he described, albeit the claimant may have embroidered or sought to improve his case, or may be mistaken about some aspect of it. If the judge is satisfied that, stripped of the detail or circumstance which he rejects, the essential facts are nonetheless clear, that they are not the odds with the general thrust of the claimant's case and that they are such that the ingredients of liability are established, then he is at liberty, and indeed is, in my view, obliged, to give judgment accordingly. It is clear to me that this is plainly a case of the latter kind.
14. A number of individual points were made in the skeleton argument upon the appeal, but the principal matter advanced by Mr Walker was that,in terms of the dichotomy to which I have referred,this case fell on the wrong side of the line and that the judge was giving judgment for the claimant on the basis of a claim which he was not really advancing. Having read the passages of the judgment which indicate the judge's reasoning in that regard, having considered with care the statements and evidence of the witnesses supportive of the claimant's general case on conditions at the premises, having considered the references in the transcript to which we have been referred by Mr Walker, I am satisfied that the appeal is totally unsustainable on that basis.
15. So far as contributory negligence is concerned, Mr Walker conceded, essentially, that if it were the view of the court that the appeal must fail on the ground that there was a substantial amount of diesel, or diesel and water, about the place and operative at the time of the claimant's accident, then it would be difficult indeed to find that he was contributorily negligent.
16. Again, for the reasons I have given in relation to liability, it seems to me that the judge was correct when he found that, having been directed to carry out an operation in relation to which he had already expressed some reservations as to the surface on which he was to walk, the claimant could not be criticised for carrying out the task which he did. If there was in the area, as he said, a sufficient amount of diesel upon the forecourt, and in particular in the kerb on which he placed his foot, to cause him to slip, that is not a matter which should found any finding of contributory negligence unless it could be shown that he set about the task he had to perform in some manifestly careless way.
17. Even if I were of the view, and I am not, that I might have found some want of care in the claimant, it seems to me that essentially it was a matter for the judge, having heard the evidence, to give his decision upon contributory negligence in the broad-brush manner which he did, and I would certainly not interfere with his decision in that respect.
18. I would therefore dismiss this appeal.
19. LORD JUSTICE CHADWICK: I agree.
Order: Appeal dismissed with costs subject to detailed assessment if not agreed.