ON APPEAL FROM SOUTHAMPTON COUNTY COURT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE AIKENS
| Janet Dawkins
|- and -
|Carnival PLC (T/AS P & O Cruises)
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr Howard Palmer QC and Miss Meghann McTague (instructed by LA Marine LLP) for the Respondents
Hearing date : 11 October 2011
Crown Copyright ©
LORD JUSTICE PILL :
"The carrier shall be liable for the damage suffered as a result of the death of or personal injury to a passenger and the loss of or damage to luggage if the incident which caused the damage so suffered occurred in the course of the carriage and was due to the fault or neglect of the carrier or of his servants or agents acting within the scope of their employment."
Article 3(3), having dealt with situations not relevant to the present case, provides:
"In all other cases the burden of proving fault or neglect shall lie with the claimant."
"Nevertheless the possibility of spillage in the cafeteria, and of someone slipping on spilt liquid, are obviously foreseeable. Although a danger such as this could be expected or at least foreseen also by a passenger, nevertheless it obviously imposes on the Defendant a clear duty to operate a reasonably effective system for getting rid of spilt liquid, and minimising the danger it may cause. The fact that in the ordinary course of things an accident such as this would not normally happen clearly raises the suggestion that the accident arose from want of care by the Defendant. It will be for the Defendants to discharge an evidential burden to the effect that the accident did not happen through want of care on their part. In effect it is for the Defendants to show that the accident was not the result of any failure by them."
". . . one could not expect a system of continual inspection of every part of the floor. There are bound to be occasions when liquid is spilt, specially in this area. . . . Thus there are bound to be times when there is unguarded spillage on the floor. A properly operated system must take this into account, but no system can completely prevent this."
"Now, in this case the floor of this supermarket was under the management of the defendants and their servants. The accident was such as in the ordinary course of things does not happen if floors are kept clean and spillages are dealt with as soon as they occur. If an accident does happen because the floors are covered with spillage, then in my judgment some explanation should be forthcoming from the defendants to show that the accident did not arise from any want of care on their part; and in the absence of any explanation the judge may give judgment for the plaintiff. Such burden of proof as there is on defendants in such circumstances is evidential, not probative. The judge thought that prima facie this accident would not have happened had the defendants taken reasonable care. In my judgment he was justified in taking that view because the probabilities were that the spillage had been on the floor long enough for it to have been cleaned up by a member of the staff."
Lawton LJ went on to say, at page 814G:
"The next question is whether the defendants by their evidence gave any explanation to show that they had taken all reasonable care."
"It is for the plaintiff to show that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendants than the absence of fault; and to my mind the judge was right in taking that view of the presence of this slippery liquid on the floor of the supermarket in the circumstances of this case. . . . "
". . . could escape from liability if they could show that the accident must have happened, or even on the balance of probability would have been likely to have happened, even if there had been an existence of proper and adequate system, in relation to the circumstances, to provide for the safety of customers".
"But if the defendants wish to put forward such a case, it is for them to show that, on balance of probability, either by evidence or by inference from the evidence that is given or is not given, this accident would have been at least equally likely to have happened despite a proper system designed to give reasonable protection to customers."
"I can well understand that it would be difficult to say that the defendants were negligent because something had got on to the floor which they may not have had the opportunity of sweeping up. Here, however, I think that there is a burden thrown on the defendants either of explaining how this thing got on the floor or giving me far more evidence than they have as to the state of the floor and the watch that was kept on it immediately before the accident. . . The defendants have not discharged the burden which I think is placed on them."
"In my judgment on the weight of the evidence shows that the Defendants did all that would be required of them in establishing a proper system for ensuring the safety of their passengers, and that the presence of the water does not on the facts of this case show that they failed in their duty that day. The proper inference in all the circumstances is that even with the best possible safeguards an accident such as this is bound to happen occasionally. I do not consider that it can be inferred that the accident occurred through want of care by the Defendants who have in my view discharged insofar as it is possible to do so their evidential burden of showing no lack of care."
"The party on whom it rests must call evidence or take the consequences, which might not necessarily be adverse : for the place where the burden eventually comes to rest does not necessarily decide the issue : because at the end of the case the Court has to decide as a matter of fact whether the inference should be drawn or not. These presumptions and burdens are therefore provisional only. It is a mistake to raise these provisional presumptions into propositions having the force of law. They are recognised by the law but their force depends on ordinary good sense rather than on law."
"In an action for negligence the plaintiff must allege, and has the burden of proving, that the accident was caused by negligence on the part of the defendants. That is the issue throughout the trial, and in giving judgment at the end of the trial the judge has to decide whether he is satisfied on a balance of probabilities that the accident was caused by negligence on the part of the defendants, and if he is not so satisfied the plaintiff's action fails. The formal burden of proof does not shift."
(a) The place where the accident happened was under the control of the respondents. It was a busy place where drinks could be obtained by passengers and there were likely to be spillages.
(b) The volume of passenger use was such that the area needed to be kept under close observation, as the respondents accepted.
(c) There was evidence of the existence of a safety system, including inspection and observation.
(d) There was no evidence from those with the duty to implement the system at or around the time of the accident.
(e) There was no evidence as to how long the liquid had been on the floor.
(a) The burden of proof is upon the appellant. At the end of the trial it is for the claimant to show on a balance of probabilities that the accident was caused by negligence on the part of the respondents.
(b) Where premises, such as the floor of the Conservatory in this case, are under the management of defendants and a hazard is present on the floor, there may be a prima facie case of negligence against the defendants. The strength of the case will depend on all the circumstances.
(c) In the present circumstances, there was a prima facie case, as the judge found.
(d) The issue is whether, on the evidence as a whole, that case was displaced. The respondents submitted that by calling evidence of a usually good system of inspection and observation, it was displaced.
LORD JUSTICE MOORE-BICK :
LORD JUSTICE AIKENS :