IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH WYCOMBE COUNTY COURT
(HIS HONOUR JUDGE CATLIN)
B e f o r e :
VICE-PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION
LORD JUSTICE TUCKEY
LORD JUSTICE DYSON
|NADA FADIL AL-MEDENNI||Claimant/Respondent|
|MARS UK LIMITED||Defendant/Appellant|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MISS CAROLINE HARMER (instructed by Messrs Baily Gibson, High Wycombe HP11 2AG) appeared on behalf of the Respondent
Crown Copyright ©
"The Defendants, their employees or agents were negligent in that they:-
6.1 Failed to make and keep safe for the Claimant a place in which she was working.
6.2 Failed to discharge the common duty of care to see that the Claimant was reasonable safe in using the premises, contrary to Section 2 of the Act.
6.3 Caused, permitted or suffered the roll of foil wrapping paper to come to be or to remain unsecured on the GD1 machine wherein it constituted a hazard.
6.4 Exposed the Claimant to a danger or a trap or a foreseeable risk of injury.
6.5 Caused permitted or suffered the Claimant to kneel in the aforesaid area when it was unsafe so to do.
6.6 Failed to warn the Claimant of the dangers of kneeling in the aforesaid area or otherwise prevent her from doing so.
6.7 Failed to take any or any adequate care for the safety of the Claimant.
6.8 By the servant or agent (Joginder Braich) who failed to secure the roll of foil wrapping paper on the GD1 machine, permitted or suffered the roll of foil wrapping paper to fall on to the Claimant without giving the Claimant any or any adequate or timely warning.
6.9 Failed to provide the Claimant safe and competent fellow employees."
"2. From what precise point on the machine does the Claimant say the roll of wrapping paper fell?
Answer: The Claimant does not know the precise point on the machine from which the roll of wrapping paper fell, but speculates that it fell from the large spool on the machine indicated on the attached four copy photographs of the machine.
3. Precisely what was the Claimant doing on the machine at the time when she was struck by the falling roll?
Answer: The Claimant was kneeling on the ground immediately adjacent to the machine demonstrating to Joginder Braich how to operate the gear and the key in order to move the machine back into position after cleaning. Joginder Braich had been cleaning the machine but was unable to move it back into position thereafter and had requested the Claimant's assistance with this operation.
4. For what purpose does the Claimant say that Joginder Braich placed the roll of foil on the machine?
Answer: Only Joginder Braich can say what he had in mind when he placed the roll of foil on the machine. The Claimant speculates that Joginder Braich placed the roll of foil on the machine after he had completed cleaning the machine in order to make it ready for use by the machine operatives on the next shift."
"... in placing the roll of wrapping paper on the machinery in such a place or manner that it could and did fall upon her as she went about her work."
"The issues have polarised very sharply, and although your Honour sees at the back of the court a large number of potential witnesses, my learned friend and I are in agreement that really it comes down to a very straightforward issue of fact. Mrs Al-Medenni has from the outside [sic] stated her case on the basis that not only did Mr Braich put the offending reel in the position in which it was in, from which she says it was dislodged so as to strike her shoulder - and your Honour may have had a quick chance to see the photographs - but she says that further he admitted to her specifically the accident to be his fault. If your Honour has seen Mr Braich's statement he denies that and that is where the issue is that your Honour is going to have to try."
"... my learned friend and I are happy to indicate that it really comes down to that, if I may put it this way, does the court accept Mrs Al-Medenni's evidence that Mr Braich put the reel on the machine and accepted that he had done so, thereby causing her accident?"
"JUDGE CATLIN: There is another possibility, is there not, and that is, apart from the claimant being responsible for it, that if the court found - and I do not think the claimant says that she saw the other man actually place the roll on the machine, so she is surmising, because he was the only one there, that it was him. But there are also four other candidates in the frame, are there not?
"MR NOLAN: No, not so, because --
JUDGE CATLIN: Why?
"MR NOLAN: From the outset, because of the way she puts her case, Mrs Al-Medenni has said it was Mr Braich, and your Honour will recall there are two references in her statement to her saying that Mr Braich --
JUDGE CATLIN: Yes, but she did not see him actually do it. I do not want to say too much at this stage because obviously people coming to give evidence might pick up on what I am saying and I do not want that to happen, but I do not see how you can rule out -- I have no view about what the likely outcome of hearing evidence is going to be but I do not see how you can rule out the possibility that it was someone other than Mr Braich.
MR NOLAN: I am asking the court simply to consider the claimant's case - is the claimant's case established - and perhaps I need say no more at this stage than you will hear from the claimant and --
JUDGE CATLIN: I recognise that if the court accepts the evidence that Mr Braich said, 'It's my fault', that that depends on what - I imagine he is going to deny saying that but that could encompass him being personally responsible, if he said it, and putting the roll where it should not have been or someone else doing it and he not being aware of it. I do not invite any response now but I do not see that it is necessarily all or nothing."
"So it must follow that someone did it, I cannot identify who it was. It is not likely to be a burglar so it must be another employee, it is the only possible explanation on the evidence ..."
"Now, the second alternative as opposed to the speculative one is that, knowing this, she thinks that reel is going to be needed on that machine later, so she places the reel, in a moment's carelessness, on the conveyer, not appreciating that as she does that that as she closes the machine she is going to knock it off. It is human error but it is a much more feasible explanation than what your Honour has described as the very speculative alternative, which I come to."
"But even before I come to the detail of dealing with that as a possibility, and why I say it is not a feasible possibility, it is not with respect permissible for a claimant to put a case and say, 'This is how my accident happened', and for that case to be rejected as it should be, because Mr Braich did not put this reel on the spindle prior to this accident. Once that case is rejected, without any alternative case having been pleaded or argued or put to any witness, then for speculation to produce some unpleaded, uncountenanced account to explain the accident and put the blame on the defendants. Either the claimant's case succeeds or it does not."
"And what I am saying is, if the claimant says adamantly, 'This is how my accident happened', and that claim as it seems is rejected, where then? In the absence of any alternative case it is not permissible to say, 'We can speculate some other way in which the claimant could make out her claim', she either has a factual case that she can establish or she does not."
"MR NOLAN: My rhetorical question in answer to that is that is which third person? Who of all the witnesses spoke of some third person being involved even near the machine?
JUDGE CATLIN: Mr Braich said there were lots of other people around.
MR NOLAN: Around - who spoke of a third person --
JUDGE CATLIN: No-one asked him, you see, and that is not a criticism. It is not for the courts to ask these questions, sometimes there are good reasons why people or counsel does not want to ask questions because they do not know what the answer is going to be, a very sound way of working, and certainly it is no part of the judge's role to ask these sort of questions."
"20. I recognise that in part of the evidence it was said that other employees who were in the area were working on another part of the area, not in this area in question, but there were other employees in the area and someone must have put this spool onto the spindle. I cannot identify - nor can the claimant, although she wrongly thought it was Mr Braich - I cannot identify the employee who was responsible for insecurely fixing this spool onto the spindle. Mr Braich denies having done so and I accept his denial. Some other employee must have done.
21. The likelihood is that such other employee was not familiar with what was required to secure the spool, but anyone who was familiar with it would have had a simple task of securely fixing it, and that to a certain extent explains and supports my finding, in my view, that it was someone inexperienced, uninstructed, who carried out the fixing of the spool to the spindle, which is why it was not properly fitted.
22. The reason why any such worker would do that is speculative and I am unable to explain why any worker would do it. There is a possibility that it was someone who was just putting the spool on the spindle whilst he cleaned another part of the machine, but there is no evidence to support that and it is pure speculation as to why an employee would have insecurely fixed the spool, but in my judgment somebody did.
23. So my finding amounts to a finding that it was done by an unidentified employee working carelessly, probably due to not being properly instructed in the fitting of the spool to the spindle, but he was working, as far as I can tell, within the course of his employment."
"In McPhilemy v Times Newspapers Ltd  3 All ER 775 Lord Woolf MR observed:
'Pleadings are still required to mark out the parameters of the case that is being advanced by each party. In particular they are still critical to identify the issues and the extent of the dispute between the parties.'
It is on the basis of the pleadings that the parties decide what evidence they will need to place before the court and what preparations are necessary before the trial. Where one party advances a case that is inconsistent with his pleadings, it often happens that the other party takes no point on this. Where the departure from the pleadings causes no prejudice, or where for some other reason it is obvious that the court, if asked, will give permission to amend the pleading, the other party may be sensible to take no pleading point. Where, however, departure from a pleading will cause prejudice, it is in the interests of justice that the other party should be entitled to insist that this is not permitted unless the pleading is appropriately amended. That then introduces, in its proper context, the issue of whether or not the party in question should be permitted to advance a case which has not hitherto been pleaded."
ORDER: Application for permission to appeal granted, the appeal is allowed and the judgment of Judge Catlin set aside; the respondent claimant to pay the appellant defendant's costs here and below, to be subject to detailed assessment if not agreed.