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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Betts v Tokley [2002] EWCA Civ 52 (18 January 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/52.html
Cite as: [2002] EWCA Civ 52
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COLCHESTER COUNTY COURT
(His Honour Judge Brandt)
Strand London WC2 Friday 18th January 2002 |
||
B e f o r e :
LORD JUSTICE LATHAM
____________________
| WENDA BETTS | ||
| Claimant | ||
| - v - | ||
| ANTHONY TOKLEY | ||
| Defendant |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
appeared on behalf of the Appellant.
MR DAVID PUGH (Instructed by Plummer Tilsley Bogan Solicitors, Balkerne House, 53 Crouch Street,
Colchester, Essex CO3 3E1) appeared on behalf of the Respondent.
____________________
Crown Copyright ©
- LORD JUSTICE BUXTON: Latham LJ will give the first judgment.
- LORD JUSTICE LATHAM: In the early hours of 18th February 1997, the appellant fell whilst leaving the premises of the respondent, her employer, and sustained a serious fracture to her humerus. The trial of the issue of liability was heard at Colchester County Court on 18th May 2000. His Honour Judge Brandt concluded that she had fallen down some steps which should have been lit. He held that the respondent was accordingly in breach of his ordinary duty of care at common law, and the common duty of care owed to the appellant as lawful visitor under the Occupier's Liability Act 1997. He further held that the respondent was in breach of the Work Place (Health, Safety & Welfare) Regulations 1992. There is no appeal by the respondent against this finding of liability. The judge, however, also concluded that the appellant was herself to blame, and reduced the proportion of the award to which she would otherwise be entitled by 60%. The appellant accepts that the judge was entitled to conclude that she was in part to blame, but submits that the judge was plainly wrong to apportion 60% responsibility to her.
- It was an unfortunate set of circumstances which gave rise to the accident. The respondent ran a taxi and courier business. He moved to the premises in question on 17th February 1997, which was a Sunday. As a result none of the staff were on 18th February familiar with the premises' layout. There was some dispute as to whether or not the appellant had been to the premises on the Sunday before her visit on the early hours of the 18th. The judge was unable to make any clear finding in this regard, but was satisfied that, even if she had, she would only have had a cursory look at the premises, and would certainly not know the detail of its layout. The appellant was normally employed by the respondent as a radio controller. Her then husband was employed as a driver. On occasions she would carry out jobs on his behalf. At the time of the accident, the appellant was about to leave for Lambourn in Berkshire to deliver a package. This was a regular Monday morning run usually carried out by her husband who was very tired that morning.
- The premises were single-storey premises leased from the Ministry of Defence. The main entrance door was approached by two steps from the forecourt. The first room on the left was the control room, containing the radio equipment. From there a short corridor connected the control room with the canteen. At the far end of the canteen there were double glass doors leading out onto a raised paved area with a metal balustrade running along the forecourt side and a solid wall on the other side. At the end of the balustrade were two four inch steps down to the level of the forecourt. It was common ground that whatever light there may have been within the building, the paved area and the steps down to the forecourt were unlit. Although the respondent submitted that there must have been some light out onto the paved area from the double doors, the judge accepted the appellant's evidence that it was pitch dark where the steps led off the paved area onto the forecourt.
- Having decided to do the Lambourn run for her husband, the appellant went at about 3.00 a.m. to the premises. There was no need for her to do so, in order to carry out the delivery. She simply went to have a chat with the radio operator who was on duty at the time, Mrs Winnie. Having parked her car outside the main entrance, she went in, and according to her, talked to Mrs Winnie for about half an hour. The judge thought that it was not as long as that; but the time is irrelevant. When she came to leave, Mrs Winnie was dealing with an incident involving the police on the radio. According to the appellant, Mrs Winnie indicated that she should go out via the canteen, the front door being locked. Mrs Winnie did not recollect giving her any such instruction, but believed the appellant found her way out herself through the canteen. Whatever may have been the reason, the appellant in fact sought to leave through the canteen, which the judge held had been lit at the time, at least to some extent, and walked onto the paved area through the double doors. She described feeling her way along the solid wall because it was so dark and turning to her left to leave the paved area for the forecourt. She was unable to remember how she fell. All she recalled was her foot simply giving way. The judge was satisfied that she had in fact fallen down the unlit steps.
- The judge's criticism of her was that in the circumstances, she was fully aware that she had to take great care if she pressed on in the dark. To do so carried with it a very real risk that she would trip or fall for one reason or another in the pitch dark. There was nothing to stop her returning through the lit building to the front door. The fact that she had had to mount the steps at the main entrance should have alerted her to the fact that there was the risk, at the very least, of steps which would need to be negotiated down from the paved area. It was on this basis that he concluded that she had essentially taken the risk of tripping or falling.
- Mr Godsmark on behalf of the appellant has sought to persuade us today that the judge's conclusions as to contributory negligence were manifestly wrong. He accepts that he faces a serious difficulty in so establishing. Nonetheless, it is his case that the judge was plainly wrong to have concluded that the appellant was more to blame than the respondent. He submits that it was the respondent who had created the trap; it was the respondent who had made it possible for her to leave through the canteen doors and out over the unlit paved area. Accordingly, to stigmatise her as more to blame than him is in his submission a conclusion to which no reasonable judge could have come in the circumstances of this case.
- I agree with him to this extent, that he has to establish that no reasonable judge could have come to such a conclusion if he is to succeed. The statement of facts which I have related indicates, of itself, that the appellant was clearly at fault in the way she approached the dark area. As the judge essentially put it, she pressed on regardless of the risk, and the risk was the risk of tripping or falling, which is what ultimately happened to her.
- In those circumstances, I can see no justification for concluding that the judge was wrong in deciding that in the circumstances of this case she should be held 60% to blame. It was a conclusion well within the ambit of the discretion that he had to determine the appropriate proportion of blame to be apportioned to her.
- Accordingly, I would dismiss this appeal.
- LORD JUSTICE BUXTON: I agree. In his exemplarily brief and clear submissions Mr Godsmark accepted that he had to persuade this court that the judge had erred in principle in the conclusions to which he came. On the evidence there is no ground for saying that it was not open to the judge to find the appellant contributorily negligent to some extent, and once that door is opened, the judge has a very broad measure of judgment - I do not say discretion but judgment - in determining what the proper proportion of liability is.
- The conclusion to which the judge came was entirely open to him on the facts of this case, and it cannot be criticised. This was a most unfortunate and unpleasant accident, but the judgment of the court below upon it cannot be faulted.
- Like my Lord, I would dismiss this appeal.
Friday, 18th January 2002