England and Wales High Court (Queen's Bench Division) Decisions

IN THE LIVERPOOL DISTRICT REGISTRY
THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE LIVERPOOL COUNTY COURT
(HHJ MacMillan)

		11 February 2011

Mr Justice Silber :

I. Introduction

1. Mrs Angela Murdock ("the appellant") has been granted permission to appeal against a decision of His Honour Judge MacMillan sitting in the Liverpool County Court on 18 August 2009 by which he dismissed the claim made by the appellant for damages against Scarisbrick Group Limited ("the respondent").
2. The claim arose out of an accident which occurred on 6 November 2005 when the appellant was using the spa facilities at the respondent's hotel which is the Scarisbrick Hotel on Lord Street in Southport. The appellant was walking from an internal corridor crossing over a threshold through a door into the shower room when her right foot slipped on the floor in the shower room area with the result that she fell backwards hitting her head on the metal door strip.
3. In the internal corridor in which the appellant had been walking just before the accident and before the threshold, there was on the ground some green matting which covered some tiles while in the shower room which the appellant was entering, there were merely some tiles on the ground.
4. Quantum was agreed prior to the commencement of the trial in the sum of £3,050. The only issue was therefore whether the respondent was liable either because of its negligence or because of a breach of its statutory duty arising under the Occupier's Liability Act 1957. To support its case of negligence and breach of statutory duty, the appellant relied on the report of Mr. Phillip Collier, a Consultant Forensic Engineer, who was not called as a witness but whose report was adduced in evidence. The judge accepted the evidence of the appellant as to the occurrence and circumstances of the accident but he found that the respondent had acted reasonably in the circumstances with the result that the appellant was entirely the author of her own misfortune. The reasoning of the judge was first that the door between the internal corridor and the shower area was a normal type of frame and second that the appellant was able to see that she was entering the shower area which had a tiled area with showers on the wall immediately in front of her.
5. The judge rejected the idea that it was necessary to warn the appellant she was going into a shower area where the floor might be wet and he noted that the shower room had been there for many years and been used by "hundreds of people a day" without there being any evidence of any previous accidents or of any complaints from any user of the spa about the step into the shower room. The judge was satisfied that the respondents had done all that was necessary under the circumstances to have regard for the interests of the claimant with the result that he rejected the appellant's claim. I should add that the judge retired before he could approve the judgment but counsel who appeared below are content that I should proceed on the basis that the draft is accurate.
6. The main criticism made by Mr Nowland who appeared both below and on this appeal on behalf of the appellant was that the judge had pre-judged the case because of the comments that he made during the course of the closing submissions to the effect that he did not accept the report of Mr Collier even though according to Mr. Nowland the judge had not read this report. Mr Nowland then submits first that the consequence of this is that the decision of the judge must be set aside, and second that I should consider the matter afresh, which would inevitably mean that the appellant must succeed. It is necessary to look at those submissions in turn.

II. The contention that the Judge had not read Mr Collier's report

7. Mr Nowland makes the bold submission that the inference can be drawn from what the judge said about Mr. Collier's report that he had not read it at the time that he stated that he did not accept Mr Collier's evidence. The judge indeed told Mr Nowland when he was making his closing submissions in relation to Mr Collier's report that "I do not accept it".
8. It is noteworthy that when the case was being opened, the judge told Mr Nowland that he had read the papers which must have comprised Mr Collier's report to which Mr Nowland had just referred. It is also clear that before the judge stated that he did not accept Mr Collier's report, he had pointed out correctly that Mr Collier had not criticised the system in place checking whether there was unsafe quantities of water.
9. These factors in my opinion undermine the contention of the appellant that the judge had not properly considered or at all the report of Mr Collier. I must now deal with the complaints made by Mr Nowland that the judge failed to appreciate that Mr Collier was alleging breaches of British Standards when he said of the step between the internal corridor of the spa and the shower room "but this is not alleged as a breach of any standards it is just Mr Collier's opinion the step is too big and that the floor is not anti-slip enough".
10. As was pointed out by the respondent in their skeleton argument, whilst Mr Collier does refer to a Health & Safety Executive publication that was not a British Standard. In any event, the thrust of that document was that abrupt changes in floor level and floor finishes in the same area ought to be avoided. I agree with Miss Short counsel for the respondents who submitted that the judge properly addressed that issue in his judgment when he stated:-

"but this is not within one area, as Mr Collier makes perfectly clear. You are moving from a public corridor.. into a shower room and spa facility.. this is not a change in surface within an area, this is two entirely different areas"

I agree that there has been no breach of any Standard.

11. Another criticism is that the judge's statement during the course of submissions that the threshold of seven and a half centimetres was what he described as "a perfectly normal threshold.. in domestic and commercial use". The case for the appellant is that this is not correct because Mr Collier in his response to questions from the respondent's lawyers said that "such high thresholds are rarely found in daily use in my experience". To my mind, the judge, as the designated fact-finder, was perfectly entitled, if not obliged, to state as he did that there was nothing wrong with this threshold especially as first he had seen the photographs of the area and second very importantly he was entitled to use his own experience of daily life. There is no reason whatsoever why the judge had to accept the evidence of Mr Collier on this point. Indeed the judge's conclusion was consistent with common sense.
12. The next criticism that is made of the judge is that he erred by saying that the door between the internal corridor and the steam room was that "it is a glass door anyway, is it not?" Mr Nowland contends that this shows that the judge had not read Mr Collier's report because it was only partially glass. I am bound to say that I do not consider that this criticism furthers the appellant's case in any way.
13. I have also reached the same conclusion on Mr. Nowland's next criticism which was that the judge talks of the door being between the "public corridor" during the course of submissions and in his judgment when the true position was that the passage of the appellant was from an internal corridor rather than a "public corridor". I am unable to see the significance of this distinction but even if this was a valid distinction as was contended for by the appellant, it does not show or even begin to show either that the judge was not being accurate when he had said that he had read Mr Collier's report or that he had failed to understand the appellant's case. Thus I unhesitatingly reject the contention of the appellant that the judge reached his decision to reject Mr Collier's report without having read it or considered it properly. Indeed, on the contrary, the judge considered Mr Collier's report and was entitled to reject much of it for reasons which emerge clearly from his judgment. For that reason the appeal must be dismissed.

III. Should the appellant's claim have been rejected?

14. I should also add that even if I had accepted the appellant's submissions and had taken the view that the decision of the judge had to be set aside because, contrary to what he had stated, he had rejected Mr Collier's evidence without considering it or he had failed to understand it, I would still have dismissed the appeal for two reasons. First, there was clear evidence that over many years a very large number of people had each day walked from the internal corridor into the shower room and none had fallen or slipped when encountering the step.
15. Mrs Nicola Neath, who had worked at the Scarisbrick Hotel for 18 years having been personnel manager as well as the Health & Safety Officer at different times, stated that on average there were about 200 users of the spa facilities each day but that in her time, there had not been any other incidents of anyone slipping in the sauna and steam room shower area nor had there been any complaints about the condition of the floor or of it being slippery. The thrust of this evidence was not undermined when she was cross-examined.
16. There was also evidence adduced by Mr Andrew Chislett who had been employed at the leisure centre at the Scarisbrick Hotel since 2003 latterly as the Hotel's Leisure Centre Manager. His evidence was also that there were on average about 200 users of the spa facilities every day and as far as he was aware, there had never been any other incidents of anyone slipping in the sauna and steam room shower area nor had there been any complaints about the condition of the area or of it being slippery. He explained that he reached that conclusion on the basis of his memory and notwithstanding Mr. Nowland's criticisms of it I would undoubtedly have accepted it.
17. If I had had to reach a conclusion on the claim of the appellant, I would unhesitatingly have rejected it not merely on account of the evidence of Mr Chislett and Mrs Neath that there had not been any previous complaint or similar accident but also for a second and perhaps more potent reason, which was that anybody walking in the area where the appellant sustained her accident would, as the photographs show, have seen clearly that there was a noticeable step into the area where there would be moist tiles. This clearly called for a level of care which must have been totally obvious and apparent to all users of this spa and the respondent cannot be held liable for the appellant's unfortunate accident. The more I considered the evidence, the more convinced I became that the appellant's claim was bound to fail.
18. Indeed in reaching this conclusion, I would respectfully adopt the comments of Staughton LJ in Green v Building Scene Limited (Court of Appeal- 5 April 1993) when he said that:-

"Looking at a photograph of the stairs, I myself would form the view that they are reasonably safe…But it is the fact that the stairs did not comply with the Building Restrictions, or the relevant British Standard. That is evidence which we must certainly take into account. It represents the current professional opinion as to what is desirable in order that accidents should be avoided. But it is one thing to lay down regulations and standards, with that objective, and another to define what is reasonably safe in the circumstances of a particular case".

19. The statutory duty of the respondent under the Occupier's Liability Act 1957 was a duty to take such care as was in all the circumstances reasonable to see that a visitor (like the appellant) would be reasonably safe in using the spa and walking in the spa. In this case the photographs and the evidence show that this duty was discharged. Therefore I unhesitatingly reject the claim that the respondents were either negligent or acted in breach of their statutory duty.
20. For those reasons and notwithstanding the sustained submissions of Mr. Nowland, the appeal must be dismissed.
21. After I circulated a draft of this judgment, both counsel agreed that the order which I should make on costs should be that the appellant should pay the respondent's costs. Such costs to be assessed on a standard basis in default of agreement.