England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Cental London Civil Justice Centre
His Honour Judge Carr
OUE02045

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/11/2012

Lord Justice Tomlinson :

1. This is an appeal against a decision of His Honour Judge Carr in the Central London County Court made on 24 January 2012 after a one-day trial whereby he dismissed a claim for damages for personal injury made by the Claimant, Miss Emma Richards, in respect of an accident which occurred on 19 February 2007. Miss Richards was then fifteen years old and the accident happened at school during the school day.
2. Since the age of eleven Miss Richards had been a pupil at Langley Park School for Girls in Beckenham, for which the Defendant/Respondent local authority is responsible. Miss Richards was leaving the building known as the "extension block" at ground level. The exit comprised a pair of metal and glass swing doors opening outwards from the centre. Miss Richards pushed open the right door. Outside she stepped down some five inches with her left foot onto a step. There was a single step between the door opening and the ground. She then stepped forward and placed her right foot at ground level and at the same time released the door, which had an automatic closing mechanism. As she was about to lift her left foot from the step behind her to make a further step forward towards the ground, and as she was flexing her heel, the door closed into contact with the back of her left heel, causing a nasty laceration of which we have seen photographs. The injury required the insertion of five stitches at the local hospital.
3. Miss Richards was at the time extremely familiar with the doors and with the step. She knew that the doors had a self-closing mechanism. She had safely negotiated the doors and the step many, many times before.
4. Indeed the doors in question and the associated step had been in place for about thirty years. There had been no previously recorded incident in which anyone had suffered injury in consequence of their use.
5. There had however been one relatively recent prior incident, in October 2006, in the course of which another pupil at the school had suffered a trivial injury, also to the back of her heel, whilst passing through the doors. Miss Olivia Carpenter, then thirteen, was together with a group of friends passing through the door in order to leave the building. Miss Carpenter pushed open the right hand door. She passed through it but hesitated on the step in order to hold the door open for another girl following behind. However, the girl behind rather than follow Miss Carpenter through the right hand door pushed open the left hand door, failing to observe that if she did so the door would hit Miss Carpenter's right leg or foot. In fact the metal strip at the bottom of the left hand door struck the back of Miss Carpenter's heel, approximately one and half inches up her leg from the sole of her foot.
6. Miss Carpenter felt some pain. When she reached her form room soon after she looked at her leg and saw that her tights had been torn and that the rear of her right ankle just above the line of her shoe was cut. It was break time and she went to reception to get a plaster. The receptionist gave her a plaster and allowed her to enter the medical room in order to apply it as she had to remove her tights in order to do so. Whilst acknowledging that it would be usual for the receptionist to ask her how the injury had occurred, Miss Carpenter could not, when she made a statement about this five years later, recall whether the receptionist actually did so. The only other people at the school to whom Miss Carpenter gave any details of the incident were some of the other girls in her tutor group later that day. Miss Carpenter discussed the incident with her parents. She was unaware of any other similar incident involving those doors and she did not wish her parents to make a fuss. In the light thereof and because the injury was not serious her parents took the matter no further. Miss Carpenter has herself made no complaint about the matter and I mean her no disrespect by describing this incident as commonplace and trivial.
7. No doubt because of its triviality the incident was not recorded, although the judge thought that in a school environment any incident causing an injury, however minor, should undoubtedly be recorded. We are not on this appeal concerned with what is required or best practice in relation to record keeping save to the extent that it is said that had the incident involving Miss Carpenter been recorded it would or should have been more fully investigated so that the mechanism of the injury could have been understood. Notwithstanding its triviality and non-recording the incident involving Miss Carpenter did in fact trigger an investigation and a recommendation, albeit one which Miss Heather Dardis for the Appellant characterises as inadequate.
8. The Respondents as occupiers owed the Appellant, Miss Richards, a duty both at common law and pursuant to the Occupiers' Liability Act 1957 to take such care as was in all the circumstances of the case reasonable to see that she would be reasonably safe in using the premises.
9. It seems to have been accepted at trial by Miss Dardis, although the judge did not regard it as a binding concession, that without the incident involving Miss Carpenter it would be impossible for Miss Richards to establish any want of reasonable care by the Respondents. At all events, the only ground upon which this appeal has been permitted to be brought is the allegation by the Appellant that following the October 2006 incident the Respondents should have recorded and investigated that incident, ensured that they understood the mechanism whereby it had occurred and taken appropriate steps to prevent a recurrence. It is said that by reason of the earlier incident the injury to Miss Richards was reasonably foreseeable and that the Respondents failed to take such steps as were reasonable in order either to eliminate or to reduce the risk of it occurring.
10. More specifically Miss Dardis submits that the following steps could and should have been taken:-

a) Recording the accident in the accident book

b) Investigating how the injury occurred

c) Considering if the injury could have been potentially serious

d) Examining the doors to appreciate the mechanism of injury and identifying which part was sufficiently sharp enough to cause a laceration

e) Checking the bottom edges of the doors

f) Establishing whether there had been any deterioration in the fabric / mechanism of the door during its many years of use

g) Covering any sharp metal edge at the bottom of the doors with tape or padding

h) Placing a warning sign on the doors

Furthermore, Miss Dardis submitted that the steps that should reasonably have been taken could have included any one or all of the following:-

i) Making an announcement in school assembly that a pupil had cut her foot on the doors out of the extension block and to be extra careful when walking through them

j) Consulting the relevant up to date Buildings Regulations to check if the doors/step complied

k) Closing the doors until remedial works could be carried out (there was another double-door entrance/exit to the building)

l) Fixing the doors open during busy periods between lessons (the area immediately outside the doors was a covered walkway)

m) Inviting a building contractor to provide advice and guidance as to how to remedy the defect

n) Raising the step to eliminate the gap as occurred after the Appellant's accident.

11. Although no record was made of the incident concerning Miss Carpenter, in fact Mr Evans, the Site Manager (or more prosaically the Caretaker), was told that a pupil had caught her foot on the rear door in the extension building. He was not told that the pupil had been injured. On 13 December 2006 he inspected the area concerned. He noted the height of the door above the step and although he did not know quite what had happened, he assessed the relationship between door opening and step as being the cause of what had been reported to him. He generated a Risk Assessment Form in which he reported as a "hazard" the "step outside rear doors to Extension building too close to doors" to which he ascribed a risk factor of "low", the alternatives being high or medium. Under the rubric "Who might be harmed and how?" he inserted "Staff/pupils stumbling/catching ankle". He recommended that the step be raised. This required building works. The step was in a very busy thoroughfare. It was a main entrance/exit from the extension block into the new technology building. It was not possible to close it off as that would cause mayhem and be hazardous in itself. Therefore the work could only be carried out during a school holiday. It would have been a serious hazard to staff and pupils to attempt to carry out work on the step during term time. After consultation with his line manager the step was initially scheduled by Mr Evans to be raised during the half-term break in February 2007 but was later moved to Easter to allow the weather conditions to improve and also to allow sufficient time for the work to be completed. It was the evidence of Mr Evans that Easter was the first holiday where the builders would stand a good chance to do the job and for the brickwork etc to set safely. As he observed, "Mixing concrete in very cold weather is risky. I wanted a good and safe job to be carried out. Bearing in mind the thousands of children who had used this main entrance/exit since 1967 without injury, we did not think waiting for a few months would be a problem". None of this evidence was the subject of any challenge. What is said by Miss Dardis for the Appellant is that because Mr Evans was not told that Miss Carpenter had been injured, and in particular not told the precise nature of the injury, he did not appreciate that the problem was not simply the presence and depth of the step adjacent to the doors but the combination of that and the metal strip at the bottom edge of the door which had the capacity to catch and injure the ankle or heel area of a person passing through the doors at the moment when the foot was resting on the step. Proper recording and investigation of the incident would, it is said, have informed Mr Evans of the circumstances in which Miss Carpenter had been injured and should have led to his or the school adopting one or more of the remedial measures suggested.
12. Tenaciously though these arguments were deployed, I am afraid that I find them wholly unrealistic and unconvincing. Closer investigation of the earlier incident would have revealed that a pupil had carelessly pushed the door open without regard to the presence of Miss Carpenter's leg resting on the step in front of it. It would have revealed that the door banged into the back of Miss Carpenter's heel and broke the skin, causing a very minor cut which required the application of a sticking plaster. The judge heard Miss Carpenter's account of the incident. Essentially his conclusion was that had the school authorities elicited the same description of the incident from Miss Carpenter in October 2006, they would in all probability have reacted in exactly the same manner as in fact they did and that that would have been a reasonable response. The judge said of the incident concerning Miss Carpenter:-

"19. . .

. . . . In short, it is precisely the sort of thing that must happen numerous times a day in every school in this country when children are going through a limited number of exits and entrances, talking to each other whilst moving through a doorway and catching some other student because they are concentrating on something other than the opening of the door. None of that, it seems to me, would be considered odd, exceptional or evidence of a hazard as regards the particular entrance concerned.

. . .

22. . .

. . . what information would [Mr Evans] have received had he spoken to [Miss Carpenter] directly? Any information he would have received would have taken him no further forward. He would have been told by Miss Carpenter that whilst passing through the door in question she had been struck on the foot when someone opened the doors into her and she required a plaster. The injury was so minor and the incident so common to everyday school activity, that what he did, namely look at the door and see if he could see anything that may have contributed to the accident that could be changed, would have been exactly the same."

13. Had the step been higher or had there been no step at all Miss Carpenter would still have been struck by the door but at a different point on her leg. The laceration which Miss Richards sustained the following February occurred in very different circumstances and without the careless intervention of a third party. Discussing the injury to Miss Richards, the judge put it this way:-

"26 . . .

What is required for an accident of this sort to have occurred is for a person, having passed through this door, to have their foot flexed, with the heel raised prior to completing the step forward at the exact second the door closes, bringing the bottom of the door into contact with the raised heel. Had the door been at the same level as the outside platform, the accident would have been the same to extent that the door would have struck, in all likelihood, Miss Richard's foot, but it would have struck it flush rather than dragging along the edge causing the unpleasant cut that we have seen. There is no complaint made of anything other than the fact that there was a step down to the platform outside the door such that the closing door was not flush with the ground at that point.

27. This is properly described – and I do not say this in any pejorative sense – as a freak accident, by which I mean the series of circumstances and timings that had to come together in order to cause the injury were impossible to predict. It is therefore of no surprise to me that in all those years in which the door had been in use nobody else had ever been injured in a similar way."

14. I would not go all the way with the judge in saying that the injury to Miss Richards was impossible to predict. It is sufficient to conclude, as I do, that the injury to Miss Carpenter did not render reasonably foreseeable the more serious and very different laceration injury to Miss Richards. What happened to Miss Carpenter has only a superficial similarity to that which happened to Miss Richards. In any event the trivial nature of the earlier incident and the risk which it brought to light, seen in the context of thirty years safe use of the doors by thousands of children and staff, rendered reasonable both the nature of the remedial action which the school authorities proposed to take and the timescale within which they proposed to do it.
15. It was most unfortunate that Miss Richards should have suffered her unpleasant injury only weeks before the work was scheduled to be done. She has my sympathy. Sympathy however is an insufficient basis on which to subvert the law of tort. It needs to be understood that not every misfortune occurring on school premises attracts compensation. I would dismiss this appeal.

Lord Justice Munby:

16. I agree.

Lord Justice Maurice Kay:

17. I also agree.