England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
HIS HONOUR JUDGE HAND QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th May 2010

Lord Justice Jackson:

1. This judgment is in four parts, namely part 1 "Introduction", part 2 "The Facts, part 3 "the Appeal in the Court of Appeal, part 4 "Decision".
Part 1: Introduction
2. This is a personal injuries action brought against the London Borough of Havering to which I shall refer as "the council". The action is brought in respect of a tripping accident. The accident is said to have occurred on a paved area in which there are a number of "planters". A "planter" is the term which has been used in this case to describe a rectangle in which a tree is planted. The four sides of the rectangle are formed by lines of bricks lying on edge. It appears from the evidence in this case that trees were planted in these planters and that, as trees died or were removed, the council, usually but not always, covered the central area of the planter with either concrete or hardcore. So the term "planter" has come to describe a rectangular piece of concrete or hardcore with bricks on edge around all four sides. It also describes a rectangular area of earth with bricks on edge around all four sides.
3. One other preliminary matter which I should mention is the only statutory provision relevant to this case, namely section 41 of the Highways Act 1980, to which I shall refer as "the 1980 Act". Section 41(1) of the 1980 Act provides:

"The authority who are for the time being the Highway Authority for a highway maintainable at the public expense are under a duty ... to maintain the highway."

4. After these preliminary remarks I must now turn to the facts.
Part 2: The Facts
5. The claimant is a 49 year-old lady who lives at 18 Pimpernel Way, Romford in East London. Late in the evening of 31^st July 2005 the claimant suffered a fall in the vicinity of her home. This was a nasty fall and she sustained a trimalleolar fracture to the left ankle.
6. The claimant's account of the accident has not been entirely consistent over the years. However, the account which the claimant presented at trial was as follows. At about 11.30pm the claimant was taking her dog for a walk, in the company of a friend, Mrs Jacqueline Mitchell. As they were walking along the paved area outside 18 Pimpernel Way the claimant trod on the side of a planter, her left foot buckled and she fell.
7. The planter in question is shown in a number of photographs which we have examined in the course of the hearing this afternoon. The clearest photograph is that on page 103 of the appeal bundle. It shows a planter which has been filled with concrete in the centre with a line of bricks on edge around the four sides. It can be seen that the paved area outside the claimant's home is terraced and the terrace comprises a series of wide steps with white lines along the edge of each step. The relevant planter spans two steps. The left hand edge of the planter is exactly on the edge of what appears to be the bottom step. The centre of the planter crosses another step and the right-hand side of the planter reaches the front of a third step. The bricks on edge rise proud above the steps. As the planter moves up from one step towards another, so the height of the brick on edge rises. It can be seen from a ruler which is held in the photographs that at the far end of the planter there is a drop of approximately four inches from the side of the planter to the base of the step which is adjoining the planter.
8. The claimant's account of her accident, viz that she tripped or slipped on the edge of a planter, is strongly disputed by the council, but I shall return to that dispute later in this judgment. I now resume the narrative.
9. Following the accident, an ambulance was called but the claimant was not taken to hospital immediately because the paramedics attending did not believe the injury was serious. Fortunately, by the following morning the severity of the claimant's injury was recognised. The claimant was admitted to hospital. X-rays were taken. The trimalleolar fracture was diagnosed. The claimant underwent an operation during which the fracture was fixed with screws and a plate. Both the injury and the subsequent treatment were unpleasant. The claimant was off work for about six months. The claimant underwent a further operation for removal of some of the metal fixings in October 2006. So it must be said this was a much more unpleasant tripping injury than sometimes comes before the courts.
10. I turn now to the claim against the council. The claimant instructed solicitors very soon after the accident. Those solicitors sent a letter of claim to the council on 18^th August 2005. Initially the council admitted liability. However, that admission was withdrawn when the council saw the claimant's medical records. Inconsistencies in the claimant's account of the accident as recorded in the medical notes led the council to believe that the claimant's claim was a fabrication.
11. On 18^th July 2008 the claimant issued proceedings in the Romford County Court. In those proceedings the claimant claimed damages for negligence and breach of statutory duty. The statutory duty relied upon was that imposed by Section 41 of the 1980 Act, namely the duty to maintain highways at public expense. There was also a pleaded claim for nuisance; however the judge took the view that that added nothing to the claim and could be disregarded. Neither counsel has criticised the judge's approach to that element of the pleading.
12. The action came on for trial on 20^th July 2009 not at the Romford County Court but at the Central London County Court. The action was heard by HHJ Hand QC. The claimant gave evidence concerning the manner in which she sustained her injuries along the lines that I have outlined earlier in this part of the judgment. The claimant called a number of supporting witnesses who had been involved with events on the day of the accident. Only one of those witnesses had actually been present when the claimant fell and that was Mrs Mitchell. Another of the witnesses called, the claimant's son, Mr James Cowan, had not witnessed the accident but on his account had hurried from 18 Pimpernel Way after the accident and had helped his mother to get up.
13. The council, for its part, called evidence of the claimant's earlier inconsistent statement to medical staff. The council called Dr Tang of the Old Church Hospital in Romford and Dr Tang confirmed the accuracy of the note which he had made concerning the claimant's injury and what she had said to him. The council also put in a number of other records from the accident and emergency department of Old Church Hospital. The council alleged that the statements made by the claimant to various health care professionals were inconsistent with the claimant's evidence at trial. The council also put in written evidence relating to the maintenance of the paved area outside Pimpernel Way, the state of the lighting and so forth. Indeed a council engineer was called to prove that the street lighting was in good order on the relevant date.
14. One major issue at trial was whether the claimant was giving a truthful account of her accident. A second major issue at trial was whether the paved area where the claimant asserted that she fell was a source of danger to the public for which the council was responsible. The third major issue at trial was the question of contributory negligence.
15. The oral evidence was called. The written evidence was put in. Counsel made their submissions and it appears, unsurprisingly, that the trial took the whole of the allotted day, 20^th July. The judge considered the evidence and submissions overnight and delivered his judgment on the following day, 21^st July 2009.
16. It must be said at once that, whatever the outcome of this appeal, the judgment delivered by HHJ Hand was a careful and detailed one in which he addressed with care numerous points arising on the evidence and from counsel's submissions. The judge noted the various inconsistencies upon which the council relied. He analysed the inconsistencies between the medical records and the claimant's oral evidence. He looked at the inconsistencies, or alleged inconsistencies, between the letter of claim and the Particulars of Claim on the one hand and the claimant's oral evidence on the other hand. Although the judge rejected certain parts of the claimant's evidence on what might be called peripheral matters, he nevertheless accepted the claimant's account of how the accident had occurred. The judge accepted that the claimant had trod on the edge of the planter at the point where there was approximately a four inch drop. Her foot had slipped off that edge and, in twisting the ankle, the fracture had been caused. The judge went on to hold that the planter on which the claimant had stepped constituted a foreseeable danger for which the council was liable under Section 41 of the 1980 Act. Accordingly the judge entered judgment for damages to be assessed, subject to a discount for contributory negligence. The judge assessed contributory negligence at one third.
17. The council was aggrieved by the decision of the Central London County Court and accordingly has appealed to the Court of Appeal.
Part 3: The Appeal to the Court of Appeal
18. By a notice of appeal dated 11 August 2009 the council appeals to the Court of Appeal on essentially three grounds. First, it is alleged that the judge erred in his approach to credibility. He did not take properly into account the numerous inconsistencies relied upon by the defendant council and the judge ought to have rejected the claimant's account of the accident.
19. The second ground of appeal is that the judge erred in fact and in law in finding that there was a dangerous defect present at the time of the claimant's accident.The essence of the second ground is that the planter on which the claimant sustained her fall was not a source of danger.
20. The third ground of appeal is that the judge erred in his assessment of contributory negligence and that to make a discount of only one third was overly generous to the claimant; therefore this court should revise that assessment.
21. Those then are the three grounds of appeal. The matter has been argued this afternoon by Mr Muhammed Haque on behalf of the appellant council and Mr William Hoskins on behalf of the respondent claimant. I, for my part, am grateful for the clarity and succinctness of counsel's submissions on both sides. In a case such as this neither party derives any benefit from their counsel labouring points which have been made clear once and I do commend the expeditious approach of both counsel, which has been of benefit to their respective clients.
22. I am bound to say also that this is not an easy appeal. The first two grounds of appeal raise difficult points where the assistance of counsel has been much needed. The third ground of appeal, with all due respect to counsel for the appellant, was not a ground which commended itself as obviously likely to succeed in the event that the first two grounds had failed.
23. After that summary of the appeal to the Court of Appeal I must now give my decision subject of course to the view of my Lords on the three individual grounds of appeal.
Part 4: Decision
24. As I mentioned earlier, the first ground of appeal is that the judge erred in law in accepting the claimant's account of the accident. In developing this ground of appeal Mr Haque for the council really relies upon three matters. First, inconsistencies between the letter before action and the Particulars of Claim on the one hand and the claimant's oral evidence on the other hand. Secondly, inconsistency between the medical records on the one hand and the claimant's oral evidence on the other hand. Thirdly, the fact that the claimant's account of the mechanism of fall changed between her visit to the consultant, Mr Bolton, and her oral evidence in court.
25. Let me deal with these three matters separately.
26. I start with the letter of claim or the letter before action. That is a letter dated 18 August 2005; it includes the following paragraph:

"The circumstances of the accident are as follows. At approximately 11.30pm on the above date our client, accompanied by her friend, was walking her dog. Her route took her across the paved square immediately outside her property. This is an area on a gradual slope laid to paving stones in a series of short steps. These steps are intercepted by means of a series of concrete ramps retained by brick pavers. There also appeared to be a planting hole where a tree had formally grown. The tree is now absent, the planter has not been filled in, there is a 4 inch depression and significant change in level which results in the surrounding box standing proud. The area is in poor repair, there is substantial weed growth and debris. As our client was walking across the area she stepped on the area of block work and as a result her foot turned over and dropped into the depression causing an inversion injury."

27. The Particulars of Claim follow the same substance as the letter before action, and I will not therefore read out the relevant paragraph in the Particulars of Claim. Mr Haque for the council contends that the case originally being advanced for the claimant was that she stepped into a planter where there was no longer a tree, went off the edge into the earth and, says Mr Haque, that is completely different from the account she gave in evidence where she says that she stepped on a planter with concrete infill and fell or tripped from that planter onto the adjoining step.
28. This argument was deployed before the judge. The judge considered the alleged inconsistency in some detail at paragraphs 32 to 39 of his judgment. He came to the conclusion that the letter of claim and the corresponding paragraph in the Particulars of Claim were not free from ambiguity and it was not established that the claimant had changed her story. The judge noted from the photographs that the only four-inch depression which was revealed was a four-inch drop off the planter from which the claimant asserted that she sustained her fall.
29. For my part, I do not think that the relevant paragraph in the letter of claim is entirely clear. It seems to me to be a somewhat confused paragraph, which in part describes the area generally and in part describes the precise location of the fall. We are told by that paragraph that the claimant stepped:

"…on the area of block work and, as a result, her foot turned over and dropped into the depression causing an inversion injury."

30. I think the judge was entitled to take the view that this was a somewhat muddled paragraph and it cannot be relied upon to undermine the oral evidence given by the claimant at trial. Of course, having heard the claimant's evidence he might have taken a different view, but I do not consider that the judge's analysis was flawed.
31. I now move on to the medical records. The medical records relied upon by the council contain a number of entries upon which attention has been focussed both at trial and in this court. First, there is an entry made by the triage nurse which reads: "Patient fell from steps last night". Mr Haque submits that that is not an accurate description of the accident as now described by the claimant: what she fell from on her account now is the edge of a planter and it is not natural to describe that as a step; secondly he makes the point that "steps" is written in the plural and not in the singular.
32. I am bound to say that this seems to be a fairly minor point. Anyone who has dealt with personal injury litigation over the years not infrequently encounters inaccuracies in records of what the patient said, not necessarily because the nurse or doctor got it wrong. The patient may be in a state of confusion or the doctor may be working, or nurse may be working, under pressure, and one has to view with some caution less significant inconsistencies. The judge considered this entry in paragraph 49 of his judgment. He recorded that the triage nurse wrote:

"Patient fell from steps last night. Swelling on bilateral malleoli, unable to weight-bear. Bony tenderness. CWS intact. Nil distress. PMA checks, nil."

33. The judge observed that that was not a particularly accurate note because on any view the claimant was distressed on her arrival at hospital. The judge was certainly entitled to make that particular finding. Clearly the claimant was distressed on her arrival at hospital. This was because she had been left at home overnight, the paramedics having refused to recognise the severity of her injury, and she was only being received for appropriate treatment the day after the accident. As to the word "steps", the judge observed in his judgment that the singular can quite easily become plural in notes taken in circumstances such as obtained on the relevant day at the accident and emergency department.
34. I move now to the second medical record upon which the defendant council relies. This is an entry made by Dr Tang which reads "Fell down stairs last night". Mr Haque for the defendant submits that this is more consistent with what may well have happened. It may well be that the claimant did indeed fall downstairs and she has given a fabricated account in her oral evidence in the county court, Mr Haque points out that Dr Tang was called to give evidence at the trial and Dr Tang said, admittedly in re-examination, that his record would be an independent record of what the patient told him; he would not have simply relied on the triage notes.
35. It should also be added that Dr Tang, unsurprisingly, at the date of trial had no independent recollection of treating the claimant.
36. The third medical record relied upon is a note made by the senior house officer which reads "was drunk and slipped over the backdoor steps last night". Mr Haque points out that this is very specific and it is more likely to be right than the claimant's account of the accident.
37. The fourth medical record relied upon by Mr Haque is a note made by the physiotherapist which reads "trip over dog and fell down steps". Mr Haque points out that there is a consistent reference to stairs both in the physiotherapist's note and in the note made by Dr Tang.
38. Mr Haque made all of these points concerning the medical records at trial. The judge noted that there were inconsistencies between the medical records and what the claimant said in evidence. He noted that the paving outside 18 Pimpernel Way comprised steps and not stairs.
39. The judge also noted that there were substantial inconsistencies between the different entries made by the medical personnel. One entry records the claimant tripping over a dog, one entry records the claimant being drunk and tripping over the backdoor steps and one entry refers to the claimant falling down the stairs. The judge noted not only that there were inconsistencies between the different medical records but also there were inconsistencies between those records and his own findings of fact. One significant inconsistency was the records concerning the claimant being drunk. The judge was quite satisfied that the claimant was not drunk on the occasion of her accident. This was because the claimant's evidence concerning her not being drunk was corroborated by a number of independent witnesses, one of whom was Joanne Mitchell whom the judge regarded as being a highly credible witness.
40. The judge also noted that there was an inconsistency, as I have previously mentioned, between the triage nurse's note that there was no distress on the part of the claimant and the judge's finding that the claimant was most distressed.
41. The judge had the enormous advantage of hearing the oral evidence of numerous witnesses who were involved with events on the relevant date. The judge heard the claimant cross-examined. The judge heard it being put to the claimant that the medical records, in their various respects, were right and that her evidence was wrong. The judge came to the conclusion, having weighed up all of the comments in the medical records against the claimant's own account of events, that in relation to the occurrence of the accident the claimant's account was correct. It seems to me that the judge did carefully analyse the medical records and he reached a conclusion which was open to him on the evidence. It would not be appropriate for this court, which has not heard the oral evidence, to substitute a different view concerning the credibility of the claimant.
42. The third matter relied upon by Mr Haque concerns the mechanism of the accident. The claimant in her oral evidence asserted that her left ankle twisted outwards. The claimant, when talking to the consultant Mr Bolton, said that her left foot had twisted inwards. The judge did not regard that as a significant matter. He said that this particular inconsistency was insignificant. He noted that the accident must have happened quickly and that such a misdescription of the mechanism of an accident to a doctor some time later is not something which would undermine the claimant's credibility.
43. Mr Haque submits that although the judge's approach to any one of these matters may have been regarded as appropriate, the judge should have stood back and looked at all these oddities and inconsistencies in the round, and if the judge had done that he would have been bound to conclude that the claimant was not giving a truthful account of the accident. Mr Haque has invited this court to take the view that what really happened was that the claimant fell downstairs as she said to one of the doctors, or alternatively the claimant tripped over the back doorstep as she said to another doctor. The claimant's account, said Mr Haque, of tripping off the edge of a planter is a fabricated account in order to recover damages for her injury.
44. If Mr Haque's submission is correct, it would follow that not only was the claimant telling deliberate lies to the county court, but so also was her son Mr James Cowan, and her friend who was present at the time of the accident, Mrs Mitchell. The judge heard all of those witnesses giving evidence. He concluded that, insofar as they corroborated the claimant's account of where the accident occurred, they were telling the truth, and as previously mentioned he concluded that the claimant's account was truthful.
45. Whilst I do accept that there are extreme cases in which this court will reverse findings of primary fact made by the trial judge, in my judgment this is not such a case. Therefore I would reject the first ground of appeal. The judge made perfectly reasonable findings of fact, which were open to him on the evidence.
46. I turn now to the second ground of appeal. Mr Haque submits that the planter upon which the claimant sustained her accident was not a source of danger at all. He referred us back to the photograph of the planter. It had been like this, he says, for a number of years. It is outside the claimant's house in an area which the claimant and the other users of the terraced area would know well. It may be a convenient ramp for pushing prams up and it cannot be said that the council was in breach of its duty under section 41 in allowing this planter to remain as we see it in the photographs.
47. The judge took a different view of this matter. The judge noted that originally the planters had been constructed as areas where trees would stand and, when there were trees there, they would not obviously be a source of danger. People would see the trees, they would walk round the trees and they would hardly perch on the brick surround of a tree and then fall off it.
48. The judge concluded that, after the trees were removed and the centres of the planters were filled with concrete, that did constitute a dangerous form of repair and these planters, with a four-inch drop from the edge of the planter onto the step, caused a situation of foreseeable danger. Therefore, said the judge, the council were negligent in allowing this to remain. Mr Haque urges us to take a different view from the judge. He submits that we are in just as good a position as was the trial judge to decide this issue, because we have the benefit of the same photographs as the judge had.
49. Mr Hoskins, on behalf of the respondent (the claimant), submits, adopting an observation of my Lord, Hedley J, that context is important. This particular area where the planters now sit is a kind of courtyard. It is the area in front of the claimant's front door. It is an area where people often walk to get to their houses. It is not realistic to view these planters as some form of ramp for the assistance of prams. The planters only exist at certain points on the steps and where the planters do exist they form a hazard to anybody who walks close to the edge of the planters.
50. Mr Hoskins also submits that this court is in a less advantageous position than the trial judge, because the trial judge heard oral evidence from witnesses who lived in the vicinity of this paving. He heard evidence from those witnesses about other falls which had occurred on the paved area.
51. For my part, I do accept that the trial judge was in a somewhat better position than this court. Nevertheless we in this court can look at the same photographs and form our own view about the safety or the dangerousness of the planters. It can be seen that the planters do not constitute convenient ramps for prams or wheelchairs. On the contrary, they just sit in assorted places on the terrace and, where they do rise up amongst the steps, they create a drop from the bricks of the planters onto the step so that anyone who walks upwards on the edge of the planter could slip off. At its tallest point there is a drop of four inches. Mr Haque realistically accepts that if a structure like this was present on the general highway or the pavements of the highway, it would constitute a hazard which the local authority could not defend. But, submits Mr Haque, that is not so in this location, which is the terraced paving outside the claimant's house and a number of other houses in Pimpernel Way.
52. This is not an easy issue by any means. However, I have come to the conclusion that we should not interfere with the judge's decision on this point. The judge took into account the well known decision of the Court of Appeal in Mills v Barnsley Metropolitan Borough Council [1992] 1 PIQR P291. There is no suggestion that the judge misdirected himself in law or that he did not have regard to the principles set out in Mills. It seems to me that the four-inch drop which occurs in various places amongst the planters on this terrace does constitute a foreseeable danger. The judge was quite entitled to come to the conclusion that the defendant council was negligent in allowing this state of affairs to continue.
53. Accordingly I reject the second ground of appeal.
54. I come now rather more briefly to the third ground of appeal. The judge made an assessment of one third for contributory negligence. Other judges might have come to a slightly different apportionment, either higher or lower than one third. However, looking at the written and oral evidence in this case it seems to me that an assessment of one third was well within the range which was open to the judge. Accordingly, I would reject the third ground of appeal.
55. For all of the above reasons in my view this appeal should be dismissed.

Mr Justice Hedley:

56. I agree that this appeal should be dismissed for all the reasons given by my Lord and in those circumstances think it neither necessary nor helpful to add any further observations of my own.

Lord Justice Carnwath:

57. I also agree. I would only add that this case is a long way on the facts from Mills v Barnsley MBC to which my Lord has referred. In that case the court referred to the particular defect in a paving stone as being less significant than "the irregularities and depressions which are a feature of the streets in towns and cities up and down the country". The present case, by contrast, was concerned with a very unusual piece of topography. Indeed, without the benefit of the photographs, I would have found it very difficult to visualise what was being talked about in the various statements. That difficulty may also have contributed to the confusion in the notes taken by those who received the claimant's various accounts at the hospital.
58. It was an unusual piece of topography because it resulted from the decline of what no doubt was originally intended as an agreeable piece of civic architecture. As the judge pointed out, when, as originally intended, there were trees, it would have been obvious where these planters came and what they were doing. But once they were gone, one was left with a uneven assortment of different surfaces. As the judge said, some remedial steps were evidently regarded as necessary when the trees were removed, and some of the spaces were concreted over; but, as he said, that by itself was not enough. It is notable that there was no attempt in this case to rely on the defence that the council had taken reasonable care to ensure that the highway was not dangerous.
59. Accordingly, it seems to me that the judge was entitled, on the somewhat unusual facts of this case, particularly in the context of this unusual topography, to reach the conclusion he did.

Order: Appeal dismissed