England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
TAUNTON COUNTY COURT
HIS HONOUR JUDGE BROMILOW
9YE00379

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/07/2011

Lord Justice Jackson :

1. This judgment is in four parts, namely:

Part 1 Introduction

Part 2 The Facts

Part 3 The Appeal to the Court of Appeal

Part 4 Decision

Part 1. Introduction
2. This is an appeal by a young woman, who slipped and injured herself at school, against the dismissal of her claim in tort.
3. The claimant was at the material time a pupil at Ansford Community School in Castle Cary, Somerset. This school is maintained by the defendant in its capacity as local education authority. The school has an assembly hall, which is used for many purposes. One of these purposes is that pupils can congregate there during the mid-morning break.
4. There are two means of access to the assembly hall. First, pupils and staff can enter the hall through an entrance foyer at one end. Secondly, it is possible for people to enter the hall directly from the school quadrangle ("quad") through a pair of fire doors at the other end of the assembly hall. At the material time both means of access were regularly used during dry weather. Indeed for pupils who were in the quad, the pair of fire doors provided a convenient short cut.
5. Section 2 of the Occupiers' Liability Act 1957 provides:

"E+W+N.I.(1) An occupier of premises owes the same duty, the "common duty of care", to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

(2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

(3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases –

(a) an occupier must be prepared for children to be less careful than adults; and

(b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupiers leaves him free to do so."

6. The common duty of care imposed by section 2 of the Occupiers' Liability Act 1957 is essentially the same as the duty to take reasonable care imposed by the law of negligence. Section 2(3) (a) has obvious relevance to a school assembly hall. However, at the age of fifteen and a half the claimant was almost an adult and would be expected to take reasonable care for her own safety.
7. After these introductory remarks I must now turn to the facts.
Part 2. The Facts
8. The claimant was born on 26 March 1991. During her teenage years she attended Ansford Community School.
9. On 11 October 2006 the claimant, who was then aged fifteen and a half, slipped and fell in the main assembly hall of the school. The area on which the claimant slipped was wet. As a result of the fall the claimant suffered an unpleasant injury to her left knee. This required prolonged treatment, although fortunately she made a good recovery in the end.
10. The claimant made a claim against the defendant council, alleging that her accident had been caused by the defendant's negligence and breach of statutory duty. The statutory duty upon which the claimant relied was the common duty of care imposed by section 2 of the Occupiers Liability Act 1957.
11. The essence of the claimant's claim was that on the day in question it was raining. The school staff had negligently permitted pupils to walk directly into the assembly hall from the quad through the fire exit doors, thus depositing water onto the floor of the assembly hall.
12. The defendant denied this allegation. The defence case was that on wet days pupils were not permitted to enter the school hall directly through the fire exit doors. Prefects were stationed by the fire exit doors to prevent this happening. The rule was breached occasionally but not often. The defendant had a reasonable system in place to prevent the hall floor from getting wet. The claimant suffered an unfortunate accident without any fault on the part of the defendant.
13. The action was tried before H.H Judge Bromilow on 18 and 19 October 2010 at the Taunton County Court. Three witnesses were called on behalf of the claimant, namely the claimant, her mother Mrs. Jackie Hufton and a young man called James Wilkinson, who had been at school with the claimant.
14. Four witnesses gave evidence for the defendant, namely Mr. Robert Benzie, the head teacher, Mrs. Elizabeth Martin, the deputy head teacher, Mrs. Lorna Martin, another teacher at the school and Mrs. Verity Smith, the school secretary.
15. The judge delivered his reserved judgment on 2 November 2010. He made findings of fact which I would summarise as follows. On days when it was raining a sign was placed by the fire exit doors to that effect. This operated as an instruction to the school prefects not to let pupils enter the hall through the fire exit doors. On wet days pupils were required to enter the hall through the foyer at the other end.
16. When the morning break began on 11 October 2006 it was not raining and accordingly no sign was hung by the fire exit doors. During the course of the twenty minute break it started to rain. Some pupils entered through the fire exit doors. The rubber mats by the doors did not absorb all the water which they brought in. There was an area of wet floor about the size of an A4 sheet of paper on which the claimant slipped and fell.
17. The judge accepted the claimant's account of how she came by her accident. He also accepted, however, that the defendant had a reasonable system in place in order to prevent the floor of the assembly hall becoming wet. At paragraph 33 of his judgment the judge said this:

"I conclude that this unfortunate accident was not the result of any want of care on behalf of the Defendants. I find that their procedures for dealing with the safety of a large number of pupils aged between 11 and 16 at break-times were reasonable and appropriate."

Accordingly the Judge dismissed the claimant's claim.

18. The claimant was aggrieved by the dismissal of her claim. Accordingly she appealed to the Court of Appeal.
Part 3. The Appeal to the Court of Appeal
19. By an appellant's notice dated 17 December 2010 the claimant appealed against the judge's decision on liability on nine separate grounds.
20. Some of the grounds of appeal, for example criticism of the judge for failing to prefer one witness over another, were untenable and have not been pursued. The principal grounds of appeal, upon which argument has centred at the hearing, are based upon an acceptance of the judge's findings of primary fact. The claimant contends that the defendant did not have a proper system in place for (a) preventing the assembly hall floor from getting wet or (b) clearing up water if the floor did become wet.
21. These are the grounds upon which I must focus in deciding the present appeal.
Part 4. Decision
22. The floor in question was a wooden one and had been in place for many years. The floor was due to be replaced, and indeed was replaced, in 2007. These replacement works had been planned long before October 2006 and were unrelated to the claimant's accident. It appears from the evidence that the wooden floor which was in place in 2006 became slippery when wet.
23. In December 2000 a member of staff slipped and fell in the assembly hall. Following that accident Mr. Farmer, the school's health and safety manager, carried out a risk assessment. The risk assessment identified the following control measures as necessary:

"(1) Restrict use of entry, ie. no access during wet weather.

(2) Fit barrier matting inside entranceway.

(3) Fit rubber matting outside entranceway."

24. The defendant is criticised in this appeal for not having called Mr. Farmer as a witness. It is difficult to see, however, what he could have added to his written risk assessment if he had been called as a witness. The appeal has proceeded on the basis that Mr. Farmer's risk assessment was a reasonable one. The real issue is whether Mr. Farmer's recommendations were properly implemented.
25. Both forms of matting recommended by Mr. Farmer in his risk assessment were duly fitted. Nevertheless, says the claimant, proper measures were not taken to prevent direct access from the quad into the assembly hall during wet weather. In that respect Mr. Farmer's recommendations were not implemented. If rain started during a break period, there would be a delay before a wet weather sign was placed by the fire doors. That was a "gap" in the system, which enabled the hall floor to get wet on the day of the claimant's accident.
26. The defendant contends that this criticism of the system is made with the benefit of hindsight. All pupils knew that they were not meant to come in through the fire exit doors during wet weather. Indeed this was admitted by Mr. James Wilkinson in cross-examination. School prefects were placed by the doors to enforce this rule. On wet days an appropriate sign would be placed by the fire exit doors. If it started to rain during a break, the evidence showed that staff would authorise the sign to be put up.
27. I must confess to having found this to be a difficult point. On the day in question a small amount of water was indeed on the floor where the claimant sustained her accident. That was probably carried in by someone entering the hall through a fire exit door. On the other hand, the defendant had specifically considered this risk and had put in place a system to control it. During the six year period since this system had been put in place there was no similar accident.
28. It is not possible, and the law does not require, the occupier of premises to take measures which would absolutely prevent any accident from ever occurring. What is required both by the common law and by section 2 of the Occupiers' Liability Act 1957 is the exercise of reasonable care.
29. The judge's conclusions on the question of reasonable care involved not only findings of primary fact but also an evaluation of the facts. The Court of Appeal will not interfere with such an evaluation unless the Judge fell into error.
30. The Judge's conclusions on this issue were as follows:

"31. Having regard to all the evidence I have heard and read from the Defendants, I find that the procedures in operation for both wet and dry breaks were entirely reasonable, appropriate and sufficient to ensure the reasonable safety of the pupils. I find that there were mats, appropriate rubber, [rink] and barrier matting on either side of the fire doors so that, if pupils did enter through the fire door, either in contravention of wet weather procedure or in defiance of a notice displayed on the door or, as in this case, when the weather conditions changed, such matting was available to collect moisture, wetness and rain water. I find that this was a reasonable procedure in the circumstances and I take notice of the fact that this was the first recorded accident since 2001.

32. Insofar as door procedures were concerned, I reject the evidence of the Claimant and Mr. Wilkinson. I find that this was a well-run school and, notwithstanding occasional breaches of the rules of admission when a pupil would be admitted by a prefect, I find that the staff were vigilant about such matters and dealt with any breaches appropriately."

31. Having read and re-read the evidence in this case, I am quite satisfied that the judge was entitled to make the findings of fact set out in those paragraphs. Furthermore, there is no basis upon which this court could interfere with the judge's evaluation of the facts or his conclusion that the defendant had a reasonable system in place to prevent the hall floor from becoming wet, even though that system failed in the present instance.
32. I must now turn to the second limb of the claimant's appeal. This is that even if water arrived on the floor through no fault of the defendant, nevertheless the defendant was negligent in failing to clear it up before the claimant stepped onto that segment of floor.
33. In relation to this argument the claimant relies upon the decision of the Court of Appeal in Ward v Tesco Stores Ltd. [1976] 1 WLR 810. In Ward the plaintiff slipped on some yoghurt while shopping at a Tesco supermarket. She fell to the floor and suffered injury. It appeared that such spillages occurred about ten times per week. The evidence adduced by the defendant did not establish that they had a reasonable system in place for dealing with spillages before a customer suffered an accident. Accordingly the claimant succeeded in her claim. Lawton LJ said this at 814:

"The next question is whether the defendants by their evidence gave any explanation to show that they had taken all reasonable care. The only explanation which they gave was that to which I have already referred. The judge weighed the evidence and decided as a matter of fact from which in this case there can be no appeal that the precautions taken were not enough, and that the plaintiff in consequence had proved her case."

34. At 815-816 Megaw LJ said:

"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: that is, that the defendants knew or should have known that it was a not uncommon occurrence; and that if it should happen, and should not be promptly attended to, it created a serious risk that customers would fall and injure themselves. When the plaintiff has established that, the defendants can still escape from liability. They could 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. 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. That, in this case, they wholly failed to do."

35. In reliance upon Ward the claimant contends that the defendant in the present case has failed to establish that it had any proper system in place for clearing up water which appeared on the floor of the assembly hall. Accordingly the claimant must succeed in her claim for negligence and breach of statutory duty.
36. I do not accept this argument. In this case, unlike Ward, the evidence does not show that liquid gathering on the floor was a frequent problem or that there needed to be a special system to ensure prompt mopping up. What the defendant put in place in the present case was a proper system to prevent water being deposited on the assembly hall floor. Unfortunately that system did not prove effective on 11 October 2006.
37. The water on which the claimant slipped was about the area of an A4 sheet of paper and cannot have been on the floor for very long. The mid-morning break began at 10.45a.m. It was not raining then. The claimant's accident occurred about half way through the break. I do not regard it as realistic to say that the school should have had a system in place whereby that small area of water should have been spotted and mopped up during the brief period of time between its arrival and the moment when the claimant slipped.
38. I therefore conclude that there is no basis upon which this court should or can interfere with the decision of the trial judge on the issue of reasonable care. It therefore follows that the defendant is not liable either for negligence or for breach of statutory duty.
39. I reach this conclusion with regret. No judge likes to send away empty-handed a claimant who has suffered injury in an accident through no fault of her own. But so long as we have a fault-based system of compensation, rather than strict liability or universal compensation for accidents on the New Zealand model, this is what judges must sometimes do.
40. In the result therefore, if my Lords agree, this appeal must be dismissed.

Lord Justice Elias:

41. I agree.

The Chancellor of the High Court:

42. I also agree.