COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
TAUNTON COUNTY COURT
HIS HONOUR JUDGE BROMILOW
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACKSON
LORD JUSTICE ELIAS
| MADDISON HUFTON
|- and -
|SOMERSET COUNTY COUNCIL
Mr. Paul Stagg (instructed by Veitch Penny Solicitors) for the Respondent
Hearing date : 14 June 2011
Crown Copyright ©
Lord Justice Jackson :
Part 1 Introduction
Part 2 The Facts
Part 3 The Appeal to the Court of Appeal
Part 4 Decision
"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."
"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.
"(1) Restrict use of entry, ie. no access during wet weather.
(2) Fit barrier matting inside entranceway.
(3) Fit rubber matting outside entranceway."
"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."
"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."
"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."
Lord Justice Elias:
The Chancellor of the High Court: