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 THE HIGH COURT
CARDIFF COUNTY COURT
(RECORDER D WYN REES)

		Royal Courts of Justice Strand London, WC2 Monday, 18 November 2002

1. LORD PHILLIPS, MR: Lord Justice Rix will give the first judgment.
2. LORD JUSTICE RIX: This is the appeal of Miss Yvonne Charles against Cardiff County Council. It arises out of the judgment given by Mr Recorder Wyn Rees. The basic facts of Miss Charles' claim are these. At the time of the incident on 19 February 1998 she was employed by the defendant council as a residential social worker at the Crosslands Residential Unit in Cardiff. She had been employed at that home since March 1990.
3. The unit provides accommodation for up to six children aged between 10 to 16, a number of whom may well have had behavioural problems. The social workers worked on a shift pattern whereby two were on duty at any one time. The home was run in an informal way in that the residents were free to come and go but were expected to return at the latest by 9 pm. The home permitted visits to residents. There were no formal rules about visits, although 9 pm was regarded as the normal deadline for visitors as well as residents.
4. On 19 February 1998 Miss Charles was working a 24-hour shift from 2 pm until 2.30 pm the next day. At 9.30 pm she heard a bang at the front door of the home. When she opened the door she saw two young males, one of whom she knew as the brother of a female resident. The resident in question was about 15 and her brother about 14. Both he and his companion wanted to enter. They were drunk, threatening and aggressive. When Miss Charles refused, the companion grabbed her left arm through the open doorway. As she attempted to withdraw her arm and close the door, her arm was caught repeatedly between the door and its frame. She eventually freed her arm, locked the door and the police were contacted. She was not able to leave the home that day. She sought medical attention the following day and was found to have suffered a soft injury tissue to her left wrist. She did not return to work until November 1999 when she was employed as a youth court worker.
5. Although general damages were agreed subject to liability, the matter was dealt with at trial on the question of liability only. The claim form was issued on 14 February 2001 only just within the 3-year limitation period. The particulars of claim listed eight particulars by reference to the common law duty of care and also to certain paragraphs relating to statutory duty under the Workplace (Health, Safety and Welfare) Regulations 1992 and the Provision and Use of Work Equipment Regulations 1992.
6. The learned recorder went through each of the eight particulars of breach of duty and rejected each of them in turn. Those particulars covered a broad ground of submission to the effect that the equipment at the home (the door and its apparatus) was not efficient or in good repair and was not suitable for its purpose, or that the health and safety training at the home was inadequate.
7. On this appeal, however, Mr Marshall, who has appeared on behalf of Miss Charles, has concentrated on a single aspect of her case below. That is the absence of a chain on the door. He submits that the door should have been supplied with a chain that it was an elementary precaution, that Miss Charles' injury occurred because she was acting as a human chain, seeking to keep the door only slightly ajar with one hand on the door architrave and the other on the handle, and that these were just the circumstances in which visitors anxious to obtain entrance grabbed her hand as a means of pulling her through the door and thus getting clearance to enter.
8. However, the precise circumstances in which the door was opened and the injury occurred are by no means clear. It emerged in the course of Miss Charles' cross-examination that on the occasion in question she had opened the door in the belief that through the frosted glass door panels the two youths outside, whom she had been able to identify as such but no further, were two of the residents of the house itself. This cross-examination took place:

"Q. You used to open this door on a regular occurrence, didn't you?

A. Yes I did.

Q. I am asking you about what you could have done. You could have asked the two youths who they were, couldn't you?

A. Yes I could have.

Q. If they responded appropriately, not whispered, you would have heard that response?

A. I'm afraid that I can't answer that question because I don't know. I never actually asked anyone who is there at the door, so I don't know.

Q. It is not something you have ever sought to do. Is that right?

A. Yes.

Q. You were working, weren't you, with a colleague, Mr Spellacey?

A. Yes.

Q. You could have called Mr Spellacey to the door and he could have answered the door, couldn't you?

A. I could have.

Q. Isn't the situation this, Miss Charles, that you simply made no efforts to determine who in fact was outside?

A. I looked through the glass. I saw it was two youths. I thought it was very likely to be two of our lads coming back, and answered the door. I didn't have time to think.

Q. Didn't have time to think? You have just got to open the door. You could ask them before you opened the door.

A. I didn't.

Q. Because you just assumed they were persons returning?

A. I would think so, yes. I'm afraid I don't remember my thoughts before I answered that door.

Q. Is it right that when you opened the door you had absolutely no cause for concern?

A. That is right, yes."

9. On the basis of that evidence, the probability is that Miss Charles opened the door, as she would normally do to a resident of the home. It was only when, as evidence also established, the two youths outside the door began to get aggressive and to seek to force their entry that the incident developed and Miss Charles' hand was caught between the door.
10. Mr Marshall submitted that no risk assessment had been undertaken before this incident and that if it had been it would have been concluded that a chain should have been fitted. However, although there was evidence that aggressive conduct was something which had to be expected both from the residents themselves and from their visitors, and this was something upon which Miss Charles had received training in the months leading up to the incident, including in the previous month of January 1998 itself. Nevertheless, the judge found that there was no previous incident recorded in the minutes of the home or in any document relating to an incident at the door. Moreover, the back door of the house was always kept open. The staff were trained to deal with aggression from residents or visitors as appropriate. Following the incident, no chain was fitted.
11. The manager of the home, Mrs Martin-Jones, gave evidence that a refusal to open the door would have been rare because that would have been contrary to the home-like atmosphere that the workers at the home were trying to create. The judge found not only that there were no records of any trouble at the front door, but also that Miss Charles would have been able to identify for herself, by means other than using a chain fitted to the door, whether the circumstances were such that she should open the door. In the evidence which I have cited she was able to identify through the frosted panes of the door the visitors at the door as being two youths. She could also have asked through the door who the visitors were. I suspect that is something that householders frequently do. The judge also found that although callers in the porch of the house could not be seen out of a window in the lounge of the home, nevertheless their attention could be attracted by someone looking through that window which might assist in establishing who the callers were and what they wanted.
12. The judge also referred to an important document which is not in the appeal papers. It was the incident report form headed "Violence at Work" completed by Miss Charles soon after the incident had taken place. In the absence of the document, I will cite from the learned recorder's judgment.

"One section of that form, towards the end, deals with 'Prevention of a Similar Incident'. The first question is: 'Is there any action which could be taken to prevent a similar incident?' To which the claimant has answered 'No'. 'Is there anyone else who should be given this information in order that they are not put at risk?' To which the claimant has replied: 'Staff to be aware that they may be threatened'. Asked whether any training had been provided, she replied, 'Yes'. When asked to specify, she said: 'Dealing with violence and aggression'.

In that form the claimant herself was saying that there was no action which could be taken to prevent a similar incident. When that was put to her in court, she said that she read that as meaning, was there any action which she could have taken to prevent that incident taking place.

The form at the time may have been a relatively new form and one which the claimant may not have been wholly familiar with. However, she is an educated person. She is a qualified social worker. She is familiar with dealing with forms and with paperwork in her day-to-day life. The question could not be clearer. It is under the heading 'Prevention of a Similar Incident'. 'Is there any action which could be taken to prevent a similar incident?' It is quite clear in my view that that question is geared to the prevention of a similar incident in the future and not to any action which the claimant herself could have taken to prevent the incident that has already happened. In response to that question the claimant answered 'No'."

13. In my judgment the recorder who heard evidence not only from Miss Charles and also Mrs Martin-Jones, the manager, but also from two other witnesses, a social worker who worked at the unit a few years earlier and from Mr Spellacey who was employed there and working on that particular evening, was entitled to come to the conclusion on hearing all the evidence and considering all the material before him that there was no breach of duty either at common law or under the regulations by reason of the absence of a chain. Despite the known risk of aggression from residents or their visitors which could happen at any time and at any point of the house, the system at both the front and back doors had operated perfectly satisfactorily for the period of some 12 years under review in this case with the exception of this particular incident. The judge remarked that it was a matter of common sense that if one had any concern about who was coming to the front door of the house at 9.30 in the evening, half an hour after the normal deadline, there were a number of precautions that could have been taken, even in the absence of a chain. Miss Charles could have called through the door or sought to attract the attention of the visitors from the lounge window. The fact is that Miss Charles just opened the door in the belief, albeit wrong, that it was residents themselves at the door.
14. The judge also found, and was entitled to find, that any breach of duty would not have been causative because there were alternative means for identifying any possible trouble. Moreover, at the end of the day, in order for Miss Charles to prove her claim as a matter of causation, she would have to satisfy the court that even if a chain had been fitted, she would have used it on this occasion. Mr Marshall fairly accepted that that was an onus which she bore. He also fairly accepted that that matter was simply not explored in evidence. His submission was that, if the chain had been there, it would have been used as a matter of routine. The evidence, however, suggests that, in the belief that the two lads at the door were residents of the house, Miss Charles would just have opened the door in the ordinary way following the ethos of the home which was to be as informal and home-like as possible.
15. In these circumstances, this court is wholly unable to reject the conclusions of the judge. He heard the witnesses and he was perfectly entitled to form the views that he did both on the matter of breach of duty and on the question of causation. At the end of his submissions Mr Marshall said that the matter was a short point and that it would very likely depend on the court's reaction as a factor of first blush.
16. The judge had his view. It is not one from which this court could properly differ. In my judgment the judge was quite right to form the conclusions he did. In the circumstances, this appeal must be dismissed.
17. LORD JUSTICE DYSON: I agree.
18. LORD PHILLIPS, MR: I also agree. If the civil justice system is to function efficiently, it is important that claims such as this are advanced promptly so that investigations and negotiations can take place as quickly as possible. If they do not succeed in resolving the matter, this should make sure that, both when witness statements are taken and when the action is heard, those who were involved still have a clear recollection of what occurred.
19. As I understand this case, the first correspondence with the defendant's solicitors was not until May 2000, two years and three months after the material events. As my Lord has said, the proceedings were initiated on the eve of the expiry of the limitation period. In such a situation, the claimant may well be faced with a difficult task in establishing liability. This claimant has failed to overcome her difficulties. I agree that breach of duty was not established on the evidence presented to the judge. Quite apart from that, I agree with my Lord that Miss Charles was faced with insuperable problems in relation to causation.
20. It has been Mr Marshall's case that, had the front door been fitted with a security chain, the incident would never have occurred. But the evidence given at the trial does not lay the ground for this submission. There was no exploration with Miss Charles of the question of what she would have done if the door had been fitted with a security chain. She had been used to opening this door without a chain for 10 years without any adverse experience. Her evidence was that she never asked who was there before opening the door. In the passage from her evidence, quoted by my Lord, she conceded that she could not remember what her thoughts were before she answered the door.
21. In the light of that evidence, I can see no basis for concluding that, if the door had been fitted with a chain, Miss Charles would have opened it on the chain or kept the door on the chain when she saw who was outside the door. The evidence is that the two youths on the doorstep were not initially showing signs of aggression.
22. In these circumstances and for the reasons given by my Lord, I agree that this appeal must be dismissed.

Order: Appeal dismissed. Appellant to pay the respondent's costs agreed in the sum of £1,945 plus VAT to be paid within 28 days.

(Order does not form part of the approved judgment)