England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OLDHAM COUNTY COURT
(HIS HONOUR JUDGE ARMITAGE QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd May 2008

Lord Justice Laws:

1. This is a renewed application for permission to appeal against the dismissal of the applicant's claim for damages for personal injury by HHJ Armitage QC in the Oldham County Court on 8 November 2007. Permission to appeal was refused on consideration of the papers by Hughes LJ on 9 April 2008.
2. The accident happened at a caravan park owned and managed by the defendants at about 8.15 pm on 26 August 2003. The facilities provided at the park included football pitches with goalposts. The applicant, who was a lawful visitor to the park, having, I think, a share in a caravan there, was playing football with his son and his son's friend. As I understand it each of the goals was a single-angled metal frame with a net; they were not full size. The applicant was in the goal. The judge accepted in essence the account of the accident given by the applicant's son although as it happens it differed from the account given by the applicant himself. The son, Thomas, was about 11 years old at the time. He described kicking the ball which went past the applicant and into the net. He said the applicant, his father, went into the net to pick up the ball and then this (taking it from the judgment at paragraph 11 which quotes his witness statement):

"As he picked it up and turned to walk back his foot got caught in the netting at the back causing him to trip. As he fell on the floor the goals kind of wobbled and then fell forwards as he was turning to get up. The crossbar hit him in the face. My dad pushed the goals off him and stood up really quickly. He had his hand over his face and was bleeding badly. He ran to the caravan to get my mum."

3. The judge also found: a) that the means used for securing the goals in position was by the use of pegs; b) the risk of the goalposts falling and causing injury was reasonably foreseeable; c) the defendants had a system of weekly inspection, although Mr Cooper for the applicant in his written argument raises a question whether such a system was in fact clearly found by the judge or, if it was, whether that is sustainable on the evidence; d) what happened was an unusual if not unique occurrence; e) the defendants knew that the pegs were from time to time interfered with. The judge held (paragraph 61) that the question was whether the defendant's system for dealing with such interference was adequate. This is what he said:

"62. It seems to me that it is much more likely than not that at the time when the claimant was injured this goal was not properly pegged down. It is not possible for me to find whether there was any particular number of pegs in any particular part of the system; that is to say, whether any part of the frame was pegged or whether any particular part of the net was pegged. The strong inference was that none of it was pegged on the basis that I have found that it actually fell over on the claimant's face in the circumstances that Thomas has described.

63.  How can the defendant be excused for that set of circumstances? The answer from the claimant's point of view, of course, is that it should not be excused because that situation should not have been as it was found to be.

64.  My conclusion, I regret to say from the claimant's point of view, is to the contrary because it seems to me, on the admittedly incomplete evidence which I have, that the proper inference to draw here is that the situation actually pertaining at the time when this accident occurred probably had not existed for very long. Whether it existed for more than 24 hours, of course, I am quite unable to say. It is wholly unlikely that it persisted for a week on the basis of the single document that I have seen. Whether a daily inspection is required, in the circumstances, must depend on the degree of interference being suffered by the defendant. There is no evidence here to suggest that the circumstances were that as soon as the situation was remedied or as soon as these goals were put out at the beginning of the season (if that is what occurred) that the pegging started to disappear, either permanently or temporarily. Indeed, as I have said more than once now, it seems to me overwhelmingly likely that for overwhelmingly most of the time these goals were at least adequately secured by the pegs which were provided."

4. It seems to me that it is at least arguable that the judge should have applied the law as it was applied in Ward v Tesco Stores Ltd [1976] 1 All ER 219, where a claimant's accident is not one which in the ordinary course of things would have happened. Had in this case the goals been properly fixed then it was incumbent on the defendant to give some explanation to show that the accident had not arisen from any want of care on their part. Arguably however the judge did not adopt that approach in the paragraphs I have set out or at least did not apply it properly. Mr Cooper points to various factors: the defendants called no direct evidence of a system of inspection and replacement of pegs; there was only a document showing some form of weekly inspection; the judge implicitly required the applicant to prove that this was not an isolated incident. That submission is really at the heart of Mr Cooper's case. Moreover there was evidence, in particular a DVD, that pegs had been displaced on another occasion or occasions.
5. The judge's judgment, I have to say, is very diffuse and prolix. I have an uneasy sense that he has not confronted the issues fair and square and I have concluded that the applicant should be allowed to canvass his points in a full appeal. I accordingly grant permission to appeal. I am very conscious of taking a different view from that of Hughes LJ who gave short but with great respect extremely clear reasons for refusing permission. It may be that the applicant or the appellant as he now is should not build his hopes too high but he has satisfied me that he is entitled to appeal.

Order: Application granted