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 OXFORD COUNTY COURT
(RECORDER HUNGERFORD)

		Royal Courts of Justice Strand London, WC2
		28th February 2006

1. LORD JUSTICE GAGE: On 9 May 2001 at about 6.45 am the appellant, or claimant as I shall call him throughout this judgment, sustained an accident at premises owned and occupied by Mutchmeats Ltd, the first defendant. At the time of the accident the claimant was employed by the second defendant, The Foods Standards Agency. He was employed as a meat inspector. The accident occurred at the height of the foot-and-mouth epidemic which swept the country in 2000 and 2001. The premises where the accident took place was the first defendant's abattoir at New Close Lane, Witney in Oxfordshire. On the morning of the accident the claimant was walking from the loading bay into the work and hygiene room. In the doorway between the two rooms there was a plastic tray, placed in such a way as to occupy the full width of the doorway and secure the door in the open position. The purpose of the tray was to contain disinfectant in which those passing between the two rooms could disinfect their footwear. The claimant placed one foot into the tray, which was either empty or very nearly empty of liquid. As he was about to place his other foot on the far side of the tray it slipped backwards, causing the claimant to lose balance and fall onto the floor. In the accident he struck his right shoulder a violent blow, thereby causing him serious and disabling injuries.
2. In respect of these injuries the claimant claimed for damages for personal injuries from both the first defendant and his employers, the second defendant, for negligence and breach of statutory duty. Following a trial on liability only at Oxford County Court on 29 June 2005, Mr Recorder Hungerford found both defendants negligent and in breach of statutory duty. He also found the claimant guilty of contributory negligence. He apportioned liability as to 60 per cent in respect of both defendants' negligence and breach of statutory duty and 40 per cent as to the claimant's contributory negligence. As between the defendants, the judge apportioned blame equally.
3. This appeal by the claimant concerns the Recorder's findings that he was guilty of contributory negligence and, if so, the apportionment. It is contended by Mr Venmore on his behalf that he was not negligent and that, even if he was, the 40 per cent that he was assessed to blame was excessive and unjustified. The Recorder accepted the claimant's version of how the accident happened and the facts found are as I have just related them.
4. Before turning to the short issue in this appeal, I should set out a little more of the background. At the time, the claimant was employed by the second defendant as a meat inspector. His job was to ensure proper hygiene practice in relation to the meat "from farm to fork", as the process was called. At the premises animals were slaughtered, hung and cut up. Because of the foot-and-mouth epidemic the official veterinary surgeon employed by the second defendant, known as the OVS, had directed foot-baths or dips containing disinfectant to be placed on the threshold of certain of the doorways within the abattoir. In response to this direction, the first defendant caused plastic meat trays filled with disinfectant to be placed in the doorways. The plastic tray concerned in this accident measured 23.5 inches long by 15 inches wide by 4.75 inches in depth. Normally it would be full of disinfectant and wedged between the two door-jambs. In this way it kept the door open and was said to be stable. At the time of the accident, the claimant was conducting a pre-operations check on part of the abattoir. He was carrying a pad and a pen.
5. After the accident he was taken to the John Radcliffe Hospital in Oxford where his injuries were attended to. There is no appeal by either defendant against the findings of negligence and breach of statutory duty and I need say no more about the facts of the accident.
6. The basis for the judge's findings against the defendants was as follows. Of the first defendant he said:

"It seems to me that taking the evidence in the round, that an employer who places an obstruction in a doorway which is likely if not filled up with liquid to be unstable, is somebody who is taking a risk with the safety of persons passing through that doorway. It is something that is foreseeable when you bear in mind that people going through doorways are usually going through for a purpose which has got nothing whatever to do with the obstruction there, their mind is on something else and it is quite foreseeable that people in such circumstances may overlook the presence of the obstruction, or not be as careful as in an ideal world they should be, and accordingly an accident is foreseeable. In my view the positioning of these trays in the doorway constituted an obstruction, an obstruction which led, as I find, to the accident which occurred."

7. On the basis of these findings he held that the first defendant was negligent and in breach of its common law duty of care under The Occupiers Liability Act and also in breach of regulations 5.1 and 12.3 of The Workplace (Health Safety and Welfare) Regulations 1998. Those were a failure to maintain the workplace in a sufficient state for the purpose of health and safety and a failure to keep the doorway free from obstruction from any article which might cause a person to slip, trip or fall. The Recorder went on to find that the footbaths were obviously unsuitable for use as footbaths, being flimsy light trays which were liable to movement when empty.
8. As to the second defendants, the Recorder found them guilty of negligence and in breach of the same statutory regulations for the same reasons. He then went on to deal with the issue of contributory negligence. At paragraph 23 of the judgment he said:

"The matter, however, does not end there. Mr Wells, the Claimant, was a Meat Inspector who had been going through this doorway for some while before the accident occurred. He knew that this tray was likely to be a hazard and in fact he had reported it some time before, he said, something which was not in his statement but which came out in evidence, and which I accept. His job, he himself, one of his jobs, was to attend to the amount of disinfectant in the tray, and to ensure that it was topped up if it was low. Knowing that, he approached the tray on this particular morning with a clip-board in one hand and a pen in the other, and instead of either pushing the tray to one side, which would have been easy to do if it were empty, or putting both feet in it, perhaps, or stepping over it or just picking it up and moving it, he did what he did, so he put his weight into this tray which he knew would be likely to move, it did move and he had an accident. I consider that the Claimant is therefore guilty of a want of care on behalf of his own safety, and given that he was the person as I have said, (a) who knew about these trays, who was worried about them enough to report, and (b) whose concern it was, one of those duties it was, to make sure that they were filled up and therefore, although it is not the primary purpose, rendered more stable, he deliberately put his foot into this tray which, as I have said, was not empty, almost empty on his evidence, and it moved and he had his accident. I consider therefore that he is liable for a considerable degree of contributory negligence which I assess as 40 per cent."

9. As I have indicated already, the appellant appeals on the ground that the Recorder was wrong to find him negligent at all, alternatively his negligence was far less than the defendants' and the apportionment should be much more favourable to him.
10. In so far as the first point is concerned, it is fair to say that before this court this morning Mr Venmore did not press that particularly strongly, but, encouraged by this court, he became more enthusiastic. The submissions are that the claimant was going about his work in the early morning so that it would be possible for the work of the abattoir to start. His attention would be on his work in hand, namely his pre-operations inspection. Although he reported the hazard provided by these footbaths to the official veterinary surgeon, his superior, so had others; and nothing had been done about it. The trays, as the judge found, were obviously unsuitable, and the claimant could not be blamed for continuing to work with a system which both defendants knew to be a hazard, and which neither had done anything to remedy. In the circumstances it is submitted by Mr Venmore that what the claimant did was mere inadvertence and did not amount to negligence.
11. On the aspect of contributory negligence, which he puts in the alternative to the first submission, he submits that the defendants' negligence and breach of statutory duty was far and away more blameworthy than that of the claimant. He relies on the fact that both the defendants had instituted a system which was hazardous and, when warned about the hazard, had failed to take steps to remedy the defects. No warnings were given. They had the responsibility to maintain a safe system and failed to do so. Each had apparently abandoned the question of risk assessment to the other. He relies on the fact that the remedy for this hazard was both simple and obvious; and after the accident in a risk assessment it was found that the obvious way of dealing with it was to put some form of mat underneath which would prevent the tray from slipping, alternatively to have put the tray in a different place.
12. Mr Venmore submits that in the circumstances, although it is, as he accepts, a bold submission to make to this court, this court should interfere with the judge's finding and apportion the blame far more favourably to the claimant.
13. The defendants rely, as one might expect, heavily on the authorities of this court which indicate that it is only in rare circumstances that this court will interfere with a judge's apportionment of responsibility. It is submitted on behalf of both defendants that the judge was plainly right to find the claimant guilty of contributory negligence, and in the circumstances this court ought not to interfere with his apportionment.
14. So far as the first issue in the appeal is concerned, in my judgment the judge was quite correct to hold that the claimant was guilty of negligence. The claimant was well aware of the existence of the tray; not only was it obvious, but he must have crossed through or over it on many occasions. He was also aware that if empty, or nearly empty, it was unstable. He had reported this fact earlier, as the judge found. In addition, and importantly in my opinion, one of the claimant's tasks in his morning pre-operational check was to look at the levels of disinfectant in the tray. If the level was low or the tray empty he would raise it in his pre-operational checklist, and in evidence he said it was his job to raise it with a meat inspector, a Mr Dennis Freemantle. He did not take any step to push the footbath out of the way. In the circumstances, in my judgment, it was inevitable that the judge would find the appellant to have been negligent and that his negligence contributed to his accident.
15. The next question for this court is whether or not the judge's apportionment was wrong. This court has said on many occasions that the question of apportionment is very much a matter for the trial judge. It is only in rare circumstances that this court will interfere with the trial judge's assessment of the apportionment as between a claimant and defendants. We have been referred by counsel to a number of authorities which demonstrate that this is the approach which the court should adopt in cases where an appeal is made against the judge's apportionment of responsibility. Most recently that principle is encapsulated in the judgment of Brooke LJ in Plumb v (1) Lisa Ayres and (2) Ryford Ltd Court of Appeal transcript [1998] 1028/2 of Wednesday 17 March 1999. I quote the paragraph from Brooke LJ's judgment which reads:

"It is very firmly established that this court will not interfere with a trial judge's apportionment of responsibility unless it can be shown that he erred in principle, or misapprehended the facts, or he is clearly shown to have been wrong; see The McGregor [1943] A C 197; Quintas v National Smelting Co Ltd [1961] 1 WLR 401; Brown and Thomas [1968] 1 WLR 1003; Jennings and Northern Collision Contractors Ltd [1970] 1 AER 1121; and Hannam Mann [1984] RTR 2052."

16. There is here no suggestion by Mr Venmore that the Recorder misapprehended the facts or erred in principle. However, he submits that the error so far as the judge is concerned is that he failed to stand back and assess the prospective blameworthiness as to each of the defendants as against the claimant's blameworthiness; and if he had done so he would have reached a different conclusion.
17. In my judgment, it is important to note that this is not what might be called as standard tripping case. Here, as I have already said, one of the claimant's tasks was to look at the tray to see if it had the correct amount of disinfectant in it. True, it was for a different purpose other than the precise purpose of health and safety of anybody crossing it, but he knew that it was a hazard and it was something which he had to report in a different connection in his pre-operation check. In my judgment that takes it outside the normal slipping case. Balancing the negligence and breach of statutory duty of the defendants on the one hand against the claimant's negligence on the other, for myself if ----I had been the trial judge I might have been persuaded to apportion responsibility more favourably for the claimant that the Recorder did. I might have found that the apportionment of one-third to two-thirds in favour of the claimant was the correct answer. But, attractively and persuasively as Mr Venmore has put his submissions, I am unpersuaded that the Recorder's apportionment can be categorised as wrong.
18. It follows that, although I have some sympathy for the claimant, in my judgment this appeal must be dismissed.
19. LORD JUSTICE MOSES: I agree. The appellant was, for the reasons given by the Recorder, guilty of contributory negligence. There was no realistic challenge to the findings which led to that conclusion, but I too must express sympathy for the claimant. Had I been the trial judge, I have little doubt that I would have found the defendants substantially more to blame than the appellant and made an award which reflected that view, but I must be loyal to the learning of this court dating back to a time when there were far more appeals in relation to personal injury litigation than there are now. No doubt prompted by the fear that this court would be flooded by such appeals, the court has traditionally taken the view that such appeals must be restricted. I am unable to say that the Recorder erred in his approach, or that his conclusion fell out of the range of reasonable responses to the issue of comparative blameworthiness. I too would dismiss this appeal.

Order: Appeal dismissed.