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 CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE REYNOLDS)

		Royal Courts of Justice Strand London, WC2 Friday, 8th November 2002

1. LORD JUSTICE PILL: This is an appeal against the judgment of His Honour Judge Reynolds given at the Central London County Court on 20th March 2002. In a claim by Mr Robert Peter Adlington ("the respondent") for damages for personal injuries, the judge gave judgment for the respondent against the Metropolitan Police Commissioner ("the appellant") for two-thirds of the damages which were to be determined.
2. The respondent was a police officer in the Metropolitan Force and was injured on his way to work at New Scotland Yard in the early morning of 18th November 1997. He was riding his Honda 1100cc motor cycle into an underground car park at the premises. Access is obtained by driving down a ramp and through an entrance which is controlled by a roller shutter door. The door is capable of being raised and lowered. As he was riding through the entrance, the door, which was being lowered at the material time, struck his crash helmet. He almost drove through but that impact occurred. He managed to pass under the shutter without falling off his machine and to park in a parking bay. The extent of the injury he sustained is in dispute and is not for consideration on the hearing of this appeal.
3. At the top of the entrance ramp is a drop-arm barrier and a cubicle which serves as a refuge for the security officer who monitors access to and egress from the garage. Both the drop-arm barrier and the steel shutter door are operated from the cubicle. The ramp is wide enough for only one vehicle. The distance between the drop-arm barrier and the roller shutter door is about 21.5 metres. When the roller shutter door is operated from the cubicle it does so on a cycle of about 40 seconds, 15 seconds to open, a dwell of 12 seconds and 13 seconds to close. There is a manual override control in the cubicle. Security considerations required that the shutter was closed when access or egress was not required. The facts about the mechanism come from a consulting engineer, Mr RC Morrisey, who gave evidence on behalf of the appellant.
4. The security officer on duty when the accident happened was Miss Maria Andrade. The respondent's case at trial was that he stopped at the top of the ramp when the barrier was in the up position, as it quite often was and had to be if a vehicle was coming out of the garage by means of the ramp. A car was driven up the ramp. The respondent showed Miss Andrade his Metropolitan Police warrant card and motor cycle parking permit. His evidence was that she turned in his direction and said "okay". She waved at him, indicating that it was all right for him to go down the ramp. As he approached, the shutter door began to close. He braked hard but the impact occurred. His vehicle slewed at a right angle when he braked.
5. Miss Heather Burrows gave evidence on behalf of the respondent. She was driving a motor car, which she said arrived at the top of the ramp after the respondent's motor cycle. From that position she observed the impact. She said that the motor cycle was being driven very slowly. Miss Andrade's evidence was that the motor cycle went down the ramp at a fast speed. She had not inspected the respondent's pass and did not indicate to him to proceed. The motor cycle was five metres from the shutter door when the door started to close.
6. The judge stated that he did not find any of the lay evidence very satisfactory. For the reasons he gave, that is understandable. The judge said that parts of the evidence of all witnesses did not stand up to close scrutiny. The judge's findings of fact were:

"I find as a fact that the shutter mechanism was on the automatic function, and that the cycle between the opening and closing of the door would have been approximately 43 seconds at the most. Of that time the door would be open enough to permit the passing of a vehicle for only 20 to 25 seconds. I find that the claimant arrived at the top of the ramp and stopped to show his documents. The door at that stage was closed. Miss Burrows then pulled up behind him, and slightly to the left, facing the ramp. Miss Andrade approached her car. There was a discussion about her pass. Miss Andrade then returned to her box for the pass. At that time, contrary to her evidence, she must have heard the buzzer from the vehicle wishing to leave the car park and, again contrary to her evidence but in accordance with the rest of the evidence, she must at that stage have pressed the button to open the shutter at that time. Miss Andrade then left the box again and did not re-enter it. So as soon as the shutter was sufficiently open a vehicle came out of the car park and up the ramp. Miss Burrows was then engaged in repositioning her car slightly, saying goodbye to her partner and further conversing with Miss Andrade about her pass.

Mr Adlington at that time started to go down the ramp. I reject his evidence that he was beckoned on and told to go down. Miss Andrade was otherwise engaged with Miss Burrows. In any event, she would have known the barrier was on automatic cycle. I cannot believe that she would have invited a vehicle to attempt to enter the car park on the same cycle as the departing one. It was not a case of the claimant approaching from behind and bypassing the security guard, but it was a case of him having shown his documents and deciding to descend to enter the car park.

As to speed, I reject the claimant's evidence that he was travelling at one mile an hour, or at walking pace, which I take to be approximately three miles an hour. I find as a fact that he was travelling at more than five miles an hour, but probably less than ten miles an hour. Speed is always relative. The claimant was approaching a sign which was telling him to stop. When he was some distance from the shutter - the claimant's evidence varied from six feet to about sixteen feet - he noticed that the shutter was shutting. On the balance of probabilities it had started to close before he noticed it. He did not hear the clunk which Miss Burrows said she did. He then braked sharply, causing the tyre to screech and the bike to slew round at 90 degrees under the barrier."

7. Based on those findings, the judge reached these conclusions:

"I find that, had he been travelling at a slower speed and/or obeying the sign to stop at the bottom of the ramp, he would have been able to pull up safely.

Throughout, Miss Andrade was not in her box keeping a proper lookout, or in a position to operate either the 'emergency' button, or the 'up' button. I am satisfied that she was not talking to a colleague at the time.

From these findings of fact where does the responsibility for this unfortunate accident lie? Although I have found that Miss Andrade did not instruct the claimant to go down the ramp, I conclude that she did permit him to do so. She did not tell him to wait until she had pressed the buttons for a fresh cycle. Further, she was not in a position to exercise control over the shutter once the claimant had elected to enter the car park."

On that basis, the judge found some of the particulars of negligence in the claim established and went on to find that negligence causative of this unfortunate accident.

8. The judge then considered the question of contributory negligence. I refer to it now because his findings of fact are arguably relevant to the question of the appellant's liability:

"I find that he [the respondent] decided to go down the ramp and enter the car park when he saw that the shutter was open, without applying his mind to the risk that it might start closing, notwithstanding his familiarity over five years with the system. He went down the ramp rather too fast, not intending the sign and stop at the bottom. He noticed that the shutter was closing too late. He failed to stop before he reached the shutter. It is the combination of speed, lack of attention and failure to take appropriate action which contributed to this accident, rather than any one of them as a factor in isolation. He had been going a little more slowly and carefully, and had he been more alert to the shutter moving, and had he stopped in a more normal way, the accident would not have occurred."

The judge considered the submissions of the parties on contributory negligence and stated:

"I have come to the conclusion that there was a major degree of contributory negligence here, which I assess at one-third."

The respondent sought leave to cross appeal against the learned judge's findings of fact. That application was refused in writing by Simon Brown LJ and again refused following a renewed oral application to the same Lord Justice.

9. For the appellant, Mr Sharp submits that, upon the judge's findings of fact, a finding of negligence against the appellant was not justified. The case was put solely upon the basis of the vicarious liability of the appellant for the alleged negligence of Miss Andrade, upon whom the total blame for the accident is put by the respondent. The primary case at the trial was that Miss Andrade had directed the respondent to proceed down the ramp. That claim was rejected. No alternative claim was put by the claimant in relation to the system operated. The judge nevertheless found that Miss Andrade was at fault in permitting the respondent to proceed down the ramp.
10. The submissions of counsel on both sides in this appeal have been helpful. In seeking to uphold the learned judge's finding of liability against the appellant, Mr Hiorns submits that Miss Andrade had sole control of the operation of the door. She did not give directions to the respondent when he was at the top of the ramp. She had not applied her mind to the possibility of the shutter coming down. She did not do her job. It was common sense that when the path was clear, the vehicle coming out from the garage having cleared the ramp, the respondent could proceed down it, the shutter door being open. The respondent had complied with his duty by showing his documents. He was entitled to proceed. The coast was clear, and it was understandable that he should proceed down the ramp when he did. In the event, he was doomed by that action, and it was the fault of Miss Andrade who did not do her job. Reliance was placed on the judge's finding that Miss Andrade did not tell the respondent to wait and upon his finding that Miss Andrade was not in a position to exercise control over the shutter once the claimant had elected to enter the car park.
11. I find the relevance of the second of those findings difficult to understand because of the judge's positive finding that, at the material time, Miss Andrade was otherwise engaged with Miss Burrows. Upon that finding of fact, Miss Andrade cannot be criticised on the basis that she did not go back into her cubicle and operate the shutter. On the judge's finding Miss Andrade was occupied at the material time and, contrary to allegations made by the respondent, in legitimate business in the discharge of her duties.
12. This is a case where both sides rely on common sense. The respondent says that, in the situation which arose, the vehicle coming out of the garage having cleared the ramp, it was common sense that he could proceed. The appellant's case as put by Mr Sharp is that, to the contrary, it was common sense that he should wait until he had authority from Miss Andrade to proceed down the ramp when it was safe to do so. Reference has been made to the "New Scotland Yard Basement Car Park Regulations". In his evidence the respondent said that, whilst he was unaware of them and the regulation that the speed of vehicles must not exceed 5 mph in the basement car park and its approaches, he assumed that such a regulation was in existence. Regulation 4 states:

"Drivers entering or leaving the basement must stop if signalled to do so by the attendant and comply with any directions given."

That, submits Mr Hiorns, does not require formal authority to proceed. Mr Hiorns relies on it to establish what he says is the common sense of the situation.

13. Mr Sharp relies on the fact that, from the judge's finding -- indeed, a contrary finding would have been surprising -- the respondent was familiar with the system. He was familiar over a period of five years. Mr Sharp submits that it was reasonable to assume that a police officer of the respondent's experience and sense of responsibility would comply with the system, which plainly required, it is submitted, that drivers should not proceed down the ramp until they have had an assurance from the security officer that it is safe to do so. The presumption must have been that the door was on automatic operation, it having been operated to let the car out of the car park, and, on the judge's finding, Miss Andrade being occupied in her duties with another motorist. It was obvious that, when the time cycle has passed as a result of the opening to let the vehicle out, the shutter gate would close. It must have been obvious to the respondent, it is submitted, that he was taking a considerable risk in attempting to go down the ramp during the cycle which had started to permit the car to come up it. This was not a case, submits Mr Sharp, where a more stringent system was required by way of further barriers or in any other way. Experienced people are expected to negotiate the ramp with common sense. The risk was obvious to a person with the experience of the respondent. The fact that the respondent put his case on the basis of an express instruction to proceed supports the view that, in the absence of such instruction, common sense required the person to wait until such an instruction was forthcoming.
14. The system was and must have been known to be, submits Mr Sharp, that there must be a stopping, which there was in this case, and a permission to go on before a driver can proceed. On the judge's finding the respondent had no authority to descend. The system being as it was, there was no need for Miss Andrade, in the case of this appellant, to give a specific warning, either that he should wait or about the speed at which he should descend. Based on those submissions, Mr Sharp argues that this was a case where the respondent took a chance. He almost got away with it but not quite.
15. Mr Sharp also argues that causation is not established. Even if Miss Andrade should have given further instructions or assistance to the respondent, it was his own conduct, on the basis of the judge's findings, in going down the ramp too fast, and in failing when coming down the ramp to stop, that was the cause of this accident.
16. I have come to the conclusion that the appellant's argument must succeed. I substantially accept the submissions of Mr Sharp as to the conduct of the parties. I am not able to find, upon the judge's findings of fact, any basis upon which Miss Andrade can be held to have been negligent or to have fallen below the standard which could reasonably be expected of her. Mr Hiorns accepts, as he has to, the familiarity of the respondent with the ramp, and in his further skeleton argument refers to how much the respondent had to lose if he flouted the rules and rode irresponsibly into the car park. Upon the judge's findings, the respondent should not have made his way down the ramp in the circumstances which prevailed until he was authorised by Miss Andrade to do so. Given his familiarity with the system and the degree of responsibility that could reasonably be expected of him, a finding that Miss Andrade should have told him to wait until she had pressed the button for a fresh cycle imposed too high a burden on her. The system employed was a proper one, given the security risk, and I can find no basis, given the findings of fact, upon which Miss Andrade can properly be held to have been guilty of negligence in permitting the respondent to proceed down the ramp. For those reasons I would allow the appeal. In those circumstances it is unnecessary to consider the allegations of contributory negligence, and I do not propose to consider the question of apportionment.
17. LORD JUSTICE THORPE: I have not found the resolution of this appeal easy. In the end, I do not seek to dissent from my Lord's conclusion that it must be allowed.
18. MR JUSTICE SCOTT BAKER: I agree that the appeal should be allowed for the reasons given by Pill LJ. The claimant's fundamental difficulty is that the judge rejected his evidence that he had been given clearance to proceed. Having rejected that evidence, the judge went on to find the defendant negligent on the basis of four allegations. Those were that it (1) caused or permitted the claimant to enter the car park when the door was liable to and did come down and strike him; (2) failed to warn him not to go down the ramp; (3) failed to warn him of the risk of entering the car park when the door had been originally raised for another vehicle, and (4) failed to press the appropriate button or control in order to ensure that the door remained in the "up" position until he had safely entered the car park.
19. What those amount to is that Miss Andrade did not stop the claimant going down the ramp by warning him not to. It has to be borne in mind that the claimant was an experienced police officer who had regularly used the car park over a period of five years. The Car Park Regulations require that drivers, entering or leaving the basement, must stop if signalled to do so by the attendant and must comply with directions given. Mr Hiorns said that the claimant did stop and did not fail to comply with any direction that Miss Andrade gave. That is true as far as it goes. However, Miss Andrade is criticised by the judge for permitting the claimant to go down the ramp and for not being in her box in a position to operate the button that controlled the shutter. She was in fact attending to another visitor.
20. In the end, the question is, where, on the basis of the judge's findings of fact, the fault for this unfortunate accident lies. Mr Sharp submits that the answer is simple, the claimant tried to nip down the ramp into the garage while the shutter was open following the exit of another vehicle from the park. Mr Hiorns submits that there was fault on both sides, the greater fault being that upon the defendant.
21. In my judgment, Miss Andrade was not at fault for failing to warn the claimant and permitting him to go down the ramp. It seems to me that any such finding of fault against Miss Andrade would be requiring her to nanny the claimant. Had she told him: "Don't go down the ramp because the shutter may come down and strike you", she would have been likely, submits Mr Sharp, to have received an old-fashioned look. In my judgment, there is support in that submission. It is never easy when the judge rejects important evidence from both sides and is left to construct his own inference of what must have happened. The judge's findings of fact must stand. On the basis of those findings, I am unable to conclude that there was any negligence on the part of the defendant. I, too, would allow the appeal.
Order: Appeal allowed with costs here and below; sum paid into court of £5,000 to be paid out to the appellants solicitors without further order.