ON APPEAL FROM LINCOLN COUNTY COURT
HIS HONOUR JUDGE JENKINS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE AIKENS
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Mr Rod Sprinks (instructed by Chattertons Solicitors) appeared on behalf of the Respondent.
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Lord Justice Pill:
"the claimant needed to get to the door without delay, she needed to move as quickly as she properly could to cover a short distance but there is no evidence to suggest that in doing so she was panicking, that she had in any sense lost control of herself or that she was disobeying the guidance given to her in relation to her CALM procedures and in other documents."
"I became concerned about my position and also that of the position of the other 2 girls in the room. I took the decision that I would go and bang on the door to attract the attention of the staff who had left the girls with me. I had to do this quickly because at the end of the corridor there is a door and once they had gone through that door they would not be able to hear me if I banged on the door of the classroom. I did have a key to the classroom door which was now locked but I took the view that if I unlocked the door the members of staff would have gone and the girls may have escaped into the corridor. None of the girls exhibited any violence towards me but I was aware of the rule that I should not be alone with them and frankly I did not want to be alone with them. I tried to manoeuvre round my chair in the room in order to get to the door but I tripped over it and fell on the floor and hurt myself quite badly."
In the event, as the respondent accepted, the girls had not behaved badly in the class, but one of them had been troublesome the previous night, and the respondent had been told that the girl would not be attending the class.
"…she ought not to have been left in the room with the girls on her own, it was culpable that she was so left and she was entitled and did take action to remedy the situation. I repeat the proposition that the guidance [that is the appellant's guidance] indicates, that she would need to take quick decisions on her own accord. This failure of the system put her plainly at risk of injury if things went wrong, that she would suffer injury as a result of the defendant's failure was reasonably foreseeable…"
"I repeat that there is no evidence from which the court could infer that the claimant behaved wrongly in this situation. In my judgment not only was she entitled to move without hesitation to protect herself but also she has an obligation to do so and was fulfilling the guidance and training which she had been given. In those circumstances what counsel for the claimant contends is what I find, that there was a direct causal connection between the situation in which the defendant had put the claimant and the other girls at risk and it was in those circumstances that the accident occurred. It does not matter that it is an accident which might not have been the most probable consequence of the defendant's negligence but that, in my judgment, is not material provided that causal connection is established."
"…the fact that she tripped is no proof of negligence in the circumstances in which she found herself […] It was her case that she needed to act and she did act and the fact that she tripped in a manner of area does not make her guilty of contributory negligence."
"The former risk [that is a risk arising from the dropping of the cover] was well known (and so foreseeable) at the time of the accident; but it did not happen. It was the second risk which happened and caused the plaintiff damage by burning. The crucial finding by the judge, in a characteristically laconic judgment, was that this was not a risk of which the defendants at the time of the accident knew, or to have known. This finding, which was justified by the evidence and has not been assailed in this appeal, would appear to lead logically to the conclusion that in causing, or failing to prevent, the immersion of the cover in the liquid, the defendants, by their servants, were in breach of no duty of care owed to the plaintiff, for this was not an act or omission which they could reasonably foresee was likely to cause him damage."
The judge had found that the two risks were "in quite a different category".
"The ground on which this case has been decided against the appellant [by the Court of Appeal] is that the accident was of an unforeseeable type. Of course, the pursuer has to prove that the defender's fault caused the accident and there could be a case where the intrusion of a new and unexpected factor could be regarded as the cause of the accident rather than the fault of the defender. But that is not this case. The cause of this accident was a known source of danger, the lamp, but it behaved in an unpredictable way."
"This accident was caused by a known source of danger, but caused in a way which could not have been foreseen."
"It has been pointed out in other cases that it is not necessary to foresee the precise accident that happened and similarly it is not necessary, in my opinion, to postulate foreseeability of the precise chain of circumstances leading up to an accident. There does not seem to me to be anything fantastic or highly improbable in the series of happenings that are alleged to have led to the accident here. If it is reasonably probable that an accident may happen from some act of neglect or commission, that may be enough to discharge the initial onus on the pursuer, though it would remain, of course, to show that the pursuer was within the class of persons to whom a duty was owed. The question is:—Was what happened so remote that it could not be reasonably foreseeable?"
"to demand too great precision in the test of foreseeability would be unfair to the pursuer since the facets of misadventure are innumerable."
Miller was cited by Lord Pearce.
"The employer must anticipate that it may not be possible to predict the precise ways in which situations of risk may arise, especially where the risk is created by carelessness. The employer is liable even if he did not foresee the precise accident that happened: Miller v South of Scotland Electricity Board 1958 SC (HL) 20, 34, per Lord Keith of Avonholm. As Lord Reid said in Hughes v Lord Advocate 1963 SC (HL) 31, 40, the fact that an accident was caused by a known source of danger but in a way that could not have been foreseen affords no defence."
Those high authorities, in my judgment, strongly support the respondent's case on the present facts.
Lord Justice Moore-Bick:
Lord Justice Aikens:
Order: Appeal dismissed; the appellant to pay costs summarily assessed in the sum of £9,500 inclusive of VAT