England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CAMBRIDGE COUNTY COURT
(HER HONOUR JUDGE PLUMSTEAD)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th October 2008

Lady Justice Arden:

1. This is a renewed application for permission to appeal from the order of HHJ Plumstead dated 17 June 2008, as against the second defendant, who is the appellant. The judgment was against the second defendant for damages at the instance of the claimant on the question of liability and the court dismissed the claim against the first defendant.
2. The second defendant was ordered to pay the claimant's costs of the claim against it and one half of the claimant's costs against the first defendant. The second defendant now makes this renewed application for permission to appeal. The matter came before Hughes LJ, who gave detailed reasons in writing for refusing permission.
3. The background may be shortly summarised at this stage. The action is an action for damages for personal injuries suffered when the claimant slipped in what appears to have been a pool of water near a luggage carousel at Stansted Airport. There is no information as to the size of that pool. The appellant submits that the judge applied too high a standard to the appellant's work as a specialist contractor. At the time of the accident, the appellant was contracted by the first defendant, whom I will call BAA, to provide cleaning services at Stanstead. The appellant employed two cleaners, one male and one female, to clear up in the relevant area. Those cleaners followed a circular route, ensuring that all parts of the arrivals area were visited and cleaned. In addition, BAA employed a customer services duty manager. This manager would patrol around the arrivals area, looking, among other things, for spillages and other health and safety risks. If a spillage was noted, a cleaner would be summoned by mobile phone, and the evidence was that a cleaner would appear pretty quickly to clear up the spillage. There was also evidence that a number of employees of BAA held passes to be in this area. They were called "airside passholders" and they too were trained to look for spillages and to make sure they were cleaned up if they spotted them, and indeed to stand beside them until they were cleaned up.
4. The claimant relied on the duty of care at common law and the duty of care owed by virtue of the Occupiers' Liability Act 1957. The parties also relied on a decision of this court, Ward v Tesco Stores Ltd [1976] 1 WLR 810, in which this court held that once an accident occurred which would not occur in the usual course of events, the onus shifted to the defendant to show that the accident would still have occurred even if there had been a proper system designed to protect customers; and, if that is what the defendant was able to show, then the defendant would be able to meet the claim and avoid liability.
5. The judge gave a detailed judgment. The judge accepted that the claimant had failed to discharge the evidential burden of proof against the first defendant. The claimant held that the appellant's system was inadequate because it lacked additional inspection of the relevant area. I will be coming to the judge's finding on that point. The judge considered that there was and there had been a spillage in the area where the claimant fell and that the spillage had been there for some twenty minutes before the claimant fell and that in the course of that time the BAA customer services duty manager had passed but had not spotted it.
6. The appellant appears today by Mr Mark Diggle and he has put his submissions concisely. He has made in his written submissions three important points. In essence he says that the judge failed to pay sufficient attention to her own findings about the system operated by the second defendant (the appellant) and to take into account that it was supplemented by observation by the manager employed by BAA and indeed the airside passholders. Mr Diggle also makes the point that cleaners carried mobile phones and could be contacted very quickly to deal with spillages, but as I see it nothing actually turns on that point, since it is not said that that part of the system was inadequate. In essence, Mr Diggle submits that the judge imposed too high a duty of care and by inference held that a reasonable system of cleaning would mean that every spillage would be dealt with within five to ten minutes. He further submits that the judge failed to take into account the fact that although 30,000 to 40,000 persons used this part of the terminal every day and that there were two spillages noted every day, there had only been five accidents in the whole period.
7. I take first the point about the system. The second defendant had its cleaners who had responsibility to perform rotating cleaning of the area and, in addition, contend that as part of that system the BAA itself had staff who would inspect the area. The judge's finding about the customer services manager employed by BAA -- a Mrs Griffin -- was as follows. The judge said at page 95H of my copy of the appeal bundle:

"I have formed the conclusion that Mrs Griffin's personal recollection that [it] was only 10 minutes earlier that she had been in the hall, for when she arrived cannot be right [that must mean 'before she arrived' rather than 'for when she arrived']. It must have been earlier. It may have been as much as 15 or even 20 minutes. It was still quite a short time but I am satisfied that Mrs Griffin went through the hall in advance of the time that Mrs Knight slipped. I am satisfied that at that time she did not notice any wet on the floor. One of the difficulties is that, as Miss Johnston for BAA has pointed out, the area between the carousels and the trolleys is a large, open principally unobstructed area but it is an area with a continual shifting population of passengers with or without trolleys, with or without luggage, passing through and her inspections, I am perfectly satisfied, were not systematic inspections of the whole area, every square inch of it, but were a visual inspection carried out by somebody doing a patrol. So although I am satisfied she did not see any spillage at the time, that does not mean I am satisfied that there was no spillage. So far as that is concerned, the other point that is made is that Mrs Knight insists that she saw no workers in uniform -- and the Initial workers [that is the appellant's workers] would have been wearing uniforms at that time -- at the time she was waiting at the sign board in order to go on her way to the carousel when her number came up, as it were; and, again, it is the reality of the situation, somebody who is (inaudible) a reasonable amount of concern for their surroundings can easily miss that there is someone moving around in that area who was then of no importance to her. So there is the situation."

8. It is apparent from that passage that the judge found that Mrs Griffin made an inspection 15-20 minutes before the slip occurred, and that what she was performing was, as the judge put it, not a systematic inspection but simply a visual inspection carried out by somebody doing a patrol. The inspection system which the judge considered to be necessary was that found by her at the end of paragraph 11 of her judgment, and I will now read what she says. It starts in the middle of page 95i of my bundle:

"However, on this type of floor with people in uncontrolled herds, if I can put it that way, there are times when a slippage is an almost inevitable consequence of there being spillage on the floor, so the actual risk after there is a spillage is a high one even if the risk is only that there will be a spillage in the busier summer months once or twice a day, and there is a record within the period of spillages causing falls and of course, as Mr Wright rightly pointed out, there are no records of those spillages which do not cause falls and given large open areas, again, there may be many, many occasions when spillages do not cause falls. It is also the case that a spillage is a substantial risk once it is there, even if it is a very small amount. Miss Johnson pointed out that there was no evidence that this spillage had been trodden in in the sense of being spread by footprints, and there was no evidence that it had been spread over an area by movement of trolleys which, I agree, is an indication that it had not been there a very long time but it had been there some time, and it seems to me that the Defendant's system simply does not have sufficient observation built in to home in on the spillage when it occurs or within a very short time thereafter, which cannot be more than five or 10 minutes in order to make it a place which is reasonably safe for large numbers of people who are otherwise distracted by the task of getting trolleys and getting luggage to be safe as they walk through the hall. Accordingly, so far as the Second Defendant is concerned, this is a case which tips into primary liability in the sense that the Second Defendant's system, good as it was, does not deal with this particular risk in a way which, in my judgment, is making sure that the visitor will be reasonably safe in using the premises for the purposes for which he is permitted to be there."

In essence the judge was saying that, although the second defendant's system was a good one, it was not sufficient to ensure that passengers were reasonably safe using the facility, and for that purpose it had to be a more regular inspection and to be more systematic -- that is what emerges from that passage and therefore, as I see it, there is no prospect on appeal of saying that the judge failed to take account of Mrs Griffin's role in this matter because her system did not qualify under the judge's finding for making the second defendant's system meet their duty of care.

9. The second submission made is that the judge fell into the trap of imposing too high a duty of care. The system is as I have explained it and, in addition, the second defendant had a roving inspector. The judge referred to the fact that there were approximately two spillages a day but only a small number of accidents. Mr Diggle submits that the judge failed to take that evidence properly into account. It is, however, very limited evidence: there is no evidence, for instance, of comparable terminals, and the judge makes the point that, although it may be it is only infrequently that a spillage which causes a problem, once you have a spillage on the ground it causes a substantial risk given the use to which this area of the terminal was being put. In my judgment, those findings were open to her and there is no prospect of success on appeal.
10. The third point is that the judge did not properly apply Ward v Tesco. This is essentially a causation point. In Ward v Tesco -- and it is sufficient to take the judgment of Megaw LJ for this purpose -- the relevant passage is at page 19 of the bundle in the helpful skeleton provided by Mr Diggle. Megaw LJ held:

"When the plaintiff has established that, the defendants can still escape from liability. They could still escape from liability if they could show that the accident must have happened, or even on balance of probability would have been likely to have happened, even if there had been in existence a proper and adequate system, in relation to the circumstances, to provide for the safety of customers."

11. Of course the position here was that Mrs Griffin had been through the terminal some 20 minutes before the accident occurred. The judge was satisfied that the spill would have been there, but she did not spot it. Mr Diggle seeks to argue from this that, even though on this assumption the second defendant's system was inadequate, the accident would still have happened anyway. They have, however, to meet a high standard in showing that the accident must have happened even if the inspections had been more frequent, and of the higher quality required by the judge's conclusion. However there is nothing to suggest that the accident would have nonetheless occurred in the same way; the position is that the spillage might have been spotted if the system had met the requirements which the judge thought were necessary to constitute a reasonably safe system.
12. In those circumstances, in my judgment there is no prospect of success on appeal and I would dismiss the application. I should add that in the skeleton argument there is an argument put forward in respect of the costs order. The judge ordered the appellant to pay one half of the claimant's costs of suing the first defendant because of the second defendant's late disclosure, but Mr Diggle submits that this disclosure was of the statements of Mrs Lamb and Mrs Jegasthan, and that this evidence had no effect on the claimant's case against the first defendant, which was BAA. This argument has not been addressed orally. I considered it carefully on paper. In my judgment it was open to the judge to take the view that, until the new statements were received, she was acting reasonably in suing both defendants and that the costs, or some part of them, of suing the first defendant should be added to the costs of the second defendant. This is a form of Sanderson Order referred to in CPR 44.3.8; and so, as I see it, this is not a ground on which permission to appeal should be given.

Lord Justice Moore-Bick:

13. I agree. There is nothing I wish to add.

Order: Application refused