England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PORTSMOUTH COUNTY COURT
SITTING AT WINCHESTER
(His Honour Judge Anthony Thompson QC)

		Royal Courts of Justice Strand London WC2 Tuesday, 2nd July 2002

1. LORD JUSTICE PILL: This is an application for permission to appeal against a judgment of His Honour Judge Anthony Thompson QC given at the Portsmouth County Court on 24th January 2002. The judge dismissed a claim for damages for personal injuries made by Mr Stanley John Hannington, the applicant.
2. The applicant was a general odd job man working for the first defendants, Mitie Cleaning (South East) Ltd, who had a cleaning contract with the second defendants, De La Rue Cash Systems Ltd, at their factory premises in Portsmouth. One of his jobs was to collect up the rubbish and waste in the yard of the premises and empty it into skips. On 27th October 1997, which was a windy day, he took a dustbin which contained waste, cardboard and paper material and attempted to empty the bin into a plastic waste disposal bin which was provided by a different company. The judge stated in his judgment that precisely what happened is unclear, but he came to the conclusion that a gust of wind brought the plastic lid of the bin down towards the applicant as he was placing the rubbish into it. The bin was on a platform about two feet high. In some way the claimant fell from the platform as a result of the lid coming down and sustained injury. I say "as a result of" because the judge did not make a finding on causation adverse to the applicant. He appears to have taken the view, at least sufficiently for present purposes, that the fall which occurred was causatively connected with the lid coming down.
3. The judge found that the claimant was an honest man. He referred to the allegations against the defendants, the first defendants being sued as employers and the second as occupiers of the premises. He referred to the allegations that there was a design fault in the bin and that there was a failure to train or warn the applicant to inspect the skip on a regular basis. Breach of statutory duty was alleged under the Use of Work Equipment Regulations 1992 and the Employers Liability (Defective Equipment) Act 1969. It was submitted that the second defendants were in breach of their duty under the Occupiers Liability Act 1957. The judge concluded that the suggestion that the lid of the skip was in some way defective was completely untenable. In reaching that conclusion he had regard to the absence of any securing catch. The judge noted that the applicant when giving evidence said that the lid had never blown on him before and that he had never seen or known the lids to blow down in that way. Another witness, Mr Mortimer, a fellow employee, did say that twice when he was doing this work the lid had come down.
4. The judge concluded:

"Both [the applicant] and Mr Mortimer were realistic about it and basically what their evidence came to was this, that this was the sort of job where you used your commonsense, and I think really that is about the measure of it. Mr Mortimer said, having mentioned the couple of occasions when the lid had blown down, that he could not remember telling anyone about it, either from Mitie, his employers, or De La Rue, and I think the reality of the situation was that neither Mr Hannington nor Mr Mortimer regarded this as a particular hazard. ...

For my part I cannot see that there is anything negligent on the part either of the employers or of the occupiers of these premises in these circumstances. It seems to me one of the ordinary hazards of life that on a windy day things do blow about ...."

5. The judge said that there was no breach of duty. He went on to say, in relation to the claimant:

"... one has to take precautions accordingly."

6. Mr McCormick submits that the judge has brought a new concept into the law by referring to the ordinary hazards of life. I do not consider that the judge was doing that. What the judge was holding was that in all the circumstances of this case there was no breach of duty in failing to provide a secure means of keeping the lid open. That was the way in which the judge saw the evidence and the circumstances. Ordinary hazards of life may or may not involve a breach of duty by employers or occupiers. There will be ordinary hazards which, by reason of their commonness or by reason of the serious consequences which may result from their occurrence, an employer or occupier is under a duty to take precautions against. I cannot conclude that the judge was saying that, merely because something was an ordinary hazard, it could not involve a breach of duty. He was considering the precise situation. In the judge's view there was no breach of duty. Of course, there is breach of a duty by way of negligence only if a risk is such that employers or occupiers ought reasonably in the circumstances to take precautions to protect their employees or visitors against it.
7. I would grant permission to appeal in this case. I do so on the basis of two pieces of evidence which were given. I should say that this is a renewed application. I refused permission on paper without having seen the transcripts, for reasons which appear on the appropriate form. Having referred to the evidence of Mr Mortimer and to the circumstances, I said:

"The judge was in my view entitled to conclude that there was no breach of duty. The fact that changes were made after the accident does not establish that there was a breach of duty at the material time."

8. Mr McCormick understandably relies upon the fact that action was taken after the accident and he refers to the document - it is not necessary to consider its precise provenance - at pages 65 and 66 of bundle C, in which it was stated:

"Due to the design of the skip I would suggest a simple locking mechanism be manufactured from mild steel to secure the locking arm from falling whilst the skip is in use."

9. In the course of argument I referred to that as a De La Rue document. Having looked at it again, I am not sure that that is the case.
10. Evidence was called on behalf of the defendants and the witnesses were of course cross-examined by Mr McCormick. Mr Dyson was asked about the use of the skip:

Q.I am just suggesting to you that at all times, whoever supplied the skip, the user and hirer of the skip has a responsibility for ensuring that it is being operated safely and is in a safe condition.

A.Yes. ...

Q.We have a skip with a lid mechanism that seems pretty daft, does it not, when one stops to think about it?

A.Yes.

Q.That skip, with that lid mechanism, was there for quite a number of months, maybe a year or so.

A.Yes. ...

Q.And it would seem that no one really paid any attention to it until such time as he was injured by it, would it not?

A.Yes, that would appear to be the case.

Q.Which is all rather unfortunate, is it not?

A.It is very unfortunate, yes.

11. Mr Balay was cross-examined about risk assessment. It was put to the witness:

"Q.It wasn't secured from the ground or to the base or to any stable structure. It was just standing more or less upright at something approaching 90 degrees and could have fallen down with relatively little force being applied to it, could it not?

A.I cannot disagree with what you are saying."

12. Mr McCormick had attempted to base a case upon the unsuitability of the two foot high platform, but the judge, rightly in my view, said (and repeated in his judgment) that there was no case in the circumstances based on that. The questioning continued:

"Q.... I suggest that had someone who had been charged with doing a risk assessment looked at it, it is a point that would have been obviously and readily picked up. Would you agree with that?

A.Yes. But, as I said earlier, I really do believe that the situation had been evaluated. It just had not, unfortunately, been documented on a risk assessment.

Q.Yes, but do you agree with me that had someone done a risk assessment of that particular operation before the accident they would have realised that there was an obvious danger there?

A.Yes."

13. The learned judge did not deal with those answers in his judgment. In my view the claimant has an arguable case on the basis of those answers, coming as they do from the defendants' witnesses. I say no more than that. It is clear from my written refusal of permission that, upon a reading of the judgment itself, it appeared to me that the judge was entitled to say that in all the circumstances the extent of the risk in relation to this plastic cover falling was not such that there was a breach of duty either by the employers or by the occupiers. I would grant permission against both defendants. I have raised with Mr McCormick the possibility that, even if he succeeds against one but not the other, his client is at risk of paying the costs of the other. He proceeds with his application in that knowledge.
14. Subject to one point, permission is given generally. He also claims, as I have mentioned, that there was a breach of statutory duty in that the equipment was unsuitable; and that point can also be argued. Permission is not, however, granted on a point which had considerable prominence in Mr McCormick's first skeleton argument but which has not since been pursued. That is the question of a fair trial in relation to the attendance of a medical witness to be called by the claimant which it is submitted was not treated properly by the judge. That had, it was submitted, an impact upon the judge's approach to the question of liability. Permission on that ground is refused.
15. There have been two oral applications. I say no more than that the second was necessary because a long skeleton argument which referred to the transcripts arrived with me only on the morning of the date fixed for the last application and it was not possible within the time allotted on a busy day to consider the question. I would consider it preferable had those appearing for the claimant waited for the arrival of the transcripts before requesting the application to be listed. I would expect the office to have co-operated.
16. LORD JUSTICE MUMMERY: I agree.
Order: permission to appeal granted as set out in judgment.