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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/09/2016

THE HONOURABLE MR JUSTICE LEWIS:

INTRODUCTION

1. This is an appeal against a decision of HHJ Bidder Q.C. sitting in the Cardiff County Court on 25 August 2015. By that decision, the judge found that the Defendant, G4S Care & Justice Services (UK) Ltd., were in breach of their duty under section 2(2) of the Occupier's Liability Act 1957 ("the Act") to take reasonable care to ensure that the Claimant was reasonably safe in using certain premises, in this case a cell at HMP Parc near Bridgend. In essence, there had been an electrical failure causing the light in the cell to go out. The judge found that the failure to restore electricity within a reasonable time in the circumstances of this case amounted to a breach of the duty under section 2 of the Act. The judge found that breach caused an injury to the claimant and awarded him damages, in an agreed amount, of £3,750 plus interest and costs.
2. The Defendant sought permission to appeal on two grounds. First, the Defendant contended that the judge erred by not asking the correct question, namely whether the premises were, as an objective fact, unsafe. Secondly, the Defendant contended that the judge had placed an unreasonably high standard of care on the Defendant. An extension of time to file the notice of appeal, and permission to appeal, were granted at the hearing on 27 July 2016 and reasons were given for those decisions in a judgment given orally on that day. There was then full argument on the grounds of appeal and judgment was reserved. This judgment is the judgment on the appeal. This judgment refers to the Defendant and the Claimant rather than the Appellant and the Respondent.

STATUTORY FRAMEWORK

3. Section 1 of the Act provides so far as material that:

"(1) The rules enacted by the two next following sections shall have effect, in place of the rules of the common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them.

"(2) The rules so enacted shall regulate the nature of the duty imposed by law in consequence of a person's occupation or control of premises and of any invitation or permission he gives (or is to be treated as giving) to another to enter or use the premises, but they shall not alter the rules of the common law as to the persons on whom a duty is so imposed or to whom it is owed; and accordingly for the purpose of the rules so enacted the persons who are to be treated as an occupier and as his visitors are the same (subject to subsection (4) of this section) as the persons who would at common law be treated as an occupier and as his invitees or licensees."

4. Section 2 of the Act provides so far as material that:

"(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".

THE FACTS AND THE JUDGMENT OF THE COUNTY COURT

5. The relevant facts can be taken from the judgment in the court below. The Claimant was at the material time a serving prisoner at Her Majesty's Prison Parc near Bridgend. It is a privately owned and occupied prison, owned and occupied by the Defendant.
6. The Claimant occupied cell number 70. He had had a hip replacement on either 21^st or 22^nd of December 2012. He had been released from hospital and returned to prison on either 29^th or the 30^th December 2012, walking with the aid of crutches and had a weak leg.
7. An electricity failure or "outage" occurred after 8.10 p.m. on 4 January 2013. Such failures were reasonably common occurrences. Between 8.15 and 8.20 p.m., the Claimant reported the fact that the power had gone off to a prison officer using the intercom in his cell. The Claimant told the prison officer that he was concerned about the power going off as he had only just come out of hospital and had mobility problems.
8. The officer passed on the information that there had been a power failure to Mr Jenkins, a senior prison officer, but he did not inform Mr Jenkins that there was a degree of urgency in this case as the power failure affected the cell of a prisoner who had shortly before come out of hospital and had mobility problems.
9. The judge found as a fact that it should have taken 10 or 15 minutes, or at most 20 minutes, to restore the power depending on where the senior officer was in the prison and whether he was immediately contactable. In the present case, Mr Jenkins was immediately contactable as he was in the handover room of the prison. The problem was not, however, rectified within that time. It should have been rectified at least by 8.35 p.m. but it was not rectified until 8.47 p.m.
10. During the period when there was no electrical power, and consequently no light in the cell, the Claimant needed to use the toilet. As it was dark in the cell he had to feel his way along the side of the bed. He did not see a slipper under his bed. He tripped over the slipper and fell hitting his head on a cupboard.
11. The judge considered the amount of light in the cell. He found that it was dark in the cell. It was not pitch black – there was some light coming from under the door and from outside. He found that the amount of light, having regard to all the evidence including evidence from a health and safety officer, was:

"34….. something in the area of between the typical side road lighting and sunset; probably more towards the bottom of that level. So some light, but poor light. Clearly, the cell would have been much safer if the lights had been or, or the television had been on.

"35. So, I find the claimant was not correct in his statement to say that it was pitch black. I find that he would have been able to see main objects in the room; that accords with the evidence of the claimant in cross examination and the officers who looked in, but he would not have been able to see detail. He did not see the slipper sticking out from the bed."

12. Against that background the judge considered whether there had been a breach of duty. He set out the provisions of section 2(2) of the Act. The judge's essential conclusions on this issue are found at paragraphs 41 to 42 of the judgment where the judge said this:

"41. The defendants were in my judgment in breach of their duty of care under the Occupiers' Liability Act because Mr Jenkins should have been told by the officer to whom the claimant had reported the outage, that the claimant was concerned, and rightly concerned, because he was a person who was in the immediate aftermath of his operation, had reduced mobility, was less able to look after himself and particularly was less able to look after himself when the lighting conditions were as poor as they were in his cell. That is not to say that there was no lighting, but there was very much reduced lighting. The urgency should have been communicated to Mr Jenkins: had it been so, I am absolutely clear he would have taken it upon himself to rectify the outage in as short a time as possible – that could have been as little as ten minutes – and the accident would not have occurred.

"42. So, when I ask myself whether the claimant has established that the defendants failed to take such care as in all the circumstances of the case was reasonable to see that he was safe in using his room, his cell, for the purposes for which he was there, I answer that question that the claimant has established that the defendants did not take such care as in the circumstances of this case was reasonable, to ensure that he was reasonable safe in using the room."

13. Earlier in the judgment, the judge had also addressed the question of the cause of the accident. He found that the power failure, and the fact that the room was darker than it would otherwise have been at this time of day, was a cause of the accident. First, the Claimant was less able to see obstructions. Secondly, because of the darkness, the Claimant had to proceed by going along the edge of the bed, feeling with his hands, and if that had not been the case he would not have slipped and would not have fallen. The judge then considered the argument of the Defendant, namely, that there was sufficient lighting for the Claimant to be safe in the room. The Defendant submitted that if the Claimant had woken at midnight, and wanted to use the toilet, the same accident might have happened and the Defendant could not have been blamed for such an accident. The judge observed that that the officers had a degree of control over whether the room was lit at the time of the accident and, if the power failure had not occurred, it would have been light and the accident would not have occurred. The judge considered, therefore, that it was correct to say that the accident was caused by the absence of light. The judge considered that the room would have been much safer and the accident would not have occurred if the lighting had been on in the room. He said that the risk of the Claimant having an accident was significantly increased by the fact that the lighting was off. The judge also considered a second argument concerning the issue of whether the Defendant did take reasonable steps to restore the power. The judge found that the timings were against the Defendant on this issue and said at paragraph 40 that the:

"…..second argument is that the defendant took reasonable steps to secure that he was reasonably safe; that they responded reasonably to the outage. In my judgment, the evidence of the timings is against the defendants on that. I have indicated what I consider to be the likely timings; that Mr Jenkins was informed of an outage between 8.15 and 8.20 and that using his timings for a reasonable time to deal with the outage, that outage should have been repaired by about 8.25 to 8.30. It should not have taken twenty minutes to repair it; in fact, it had not been repaired by the time of the accident. The claimant was not able to wait any longer; he wanted to go to the toilet and he decided to do so. Had the defendants acted more swiftly to repair the outage, the light would have been back on and he would have safely got to the toilet, going straight across the room, rather than negotiating the side of the bed where there was the slipper which he obviously did not see, as a result of the light being deficient in the room".

THE ISSUES

14. There are essentially two issues, arising out of the two grounds of appeal as developed in the Defendant's written skeleton argument and oral submissions. I will deal with the issues in the order in which they were dealt with in argument. The issues are:

(1) Did the judge err in his approach to the question of whether there had been a breach of section 2 of the Act because the judge failed to address the question of whether the premises were reasonably safe during the period of the power failure and failed to consider and make any finding that the lighting conditions were such as to make the cell, as an objective fact, unsafe?

(2) Did the judge err by imposing an unreasonably high standard of care on the Defendant in all the circumstances of the case?

THE FIRST ISSUE – THE PROPER APPROACH TO SECTION 2 OF THE ACT

15. The basis of this ground of appeal is that the judge failed to consider whether, as an objective fact, the premises were reasonably safe. There were a number of strands to Mr Taussig's submissions. He submitted that section 2(2) of required that there be a defect in the premises such as to render them unsafe as a matter of objective fact, relying upon the decision of the Court of Appeal in West Sussex County Council v Pierce [2014] P.I.Q.R. 101 and paragraph 18 of that judgment in particular. In the present case, he submitted, there were no clear finding that the lighting conditions in the cell were such as to render the cell, as an objective fact, unsafe. He further submitted that the amount of light in the cell during the period of the power failure would be the same during the middle of the night and, if the Claimant had therefore got up to use the toilet in the middle of the night, he would have faced the same conditions as he did during the power failure in the earlier part of the evening. As the cell would be reasonably safe in the same lighting conditions later at night, he submitted that it was illogical to find that, objectively, the state of the cell was not reasonably safe earlier in the evening when the lighting conditions would have been the same. Mr Taussig also submitted that the judge had, in effect, simply considered whether the darkness was a cause of the accident and had not focussed on the question of the objective state of the premises. He relied upon the decision of the Court of Appeal in Manning v Hope, The Times 18 February 2000 where, he submitted, a similar error on the part of a first-instance judge had been corrected by the Court.

Analysis

16. First, the duty of care recognised by section 2(2) of the Act is a duty "to take such care as in all the circumstances 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" to be there.
17. Secondly, that is the test identified and applied by the Court of Appeal in the Pierce case. There a stainless steel water fountain had been installed in a school. A pupil struck the fountain with his hand and suffered a cut. The claim alleged that the water fountain had a sharp edge to it and there was a foreseeable risk of injury. Sharp L.J., with whom the other members of the Court agreed, found that the judge had erred in his approach to the case. He had not identified or resolved the relevant legal issues. He had not mentioned, or applied, the provisions of section 2 of the Act. He had proceeded on the flawed basis that, once he had determined that the underside of the water fountain was sharp and there was a possibility that an accident might occur, the defendants were liable unless they had conducted a properly considered risk assessment. Having regard to the provisions of the Act, Sharp L.J. observed that:

"17. The question which has to be addressed therefore is whether as a matter of objective fact, visitors to the School were reasonably safe in using the premises, including for this purpose, the water fountain, bearing in mind of course that children do not behave like adults, and are inclined to lark about.

"18 In my view the answer to that question is yes. The water fountain was reasonably safe, or putting it another way, the evidence did not establish that it was not. This court looked at and felt the underside edge of the water fountain. I do not think it can be described as sharp, let alone extremely sharp. It was not possible for example to cut a finger by pressing on it. But whether it could be described as sharp or not, by no stretch of the imagination could it be said to constitute a danger to children. Certainly, the edge could have been bevelled, or padded, and had that been done, the claimant might not have injured his thumb. But to say that misses the point it seems to me. The School was not under a duty to safeguard children against harm under all circumstances. Each case is of course fact sensitive, but as a matter of generality, the School was no more obliged as an occupier to take such steps in respect of the water fountain than it would be in respect of any of the other numerous ordinary edges and corners or surfaces against which children might accidentally injure themselves whilst on the premises. The law would part company with common sense if that were the case, and I do not consider that it does so."

18. There, the question for the court was whether as a matter of objective fact visitors were reasonable safe in using the premises, including the fountain. The issue on the facts was whether the physical condition of the fountain was such that it was not reasonably safe to use it.
19. A similar approach appears in the decision of the Court of Appeal in Manning v Hope. There, the claimant attended a function at a venue which was a converted barn. She went to the toilet. That involved going up two steps. As she returned, she fell and broke her ankle. The judge at first instance found that it was reasonably foreseeable that the lack of a handrail could cause difficulties and that the height of the riser of the top step was a potential hazard and it was reasonably foreseeable that an accident could have occurred. Tuckey L.J., with whom Auld L.J. agreed, considered that the judge at first instance had not applied the relevant test, but considered only whether the accident was foreseeable or caused by the steps. As Tuckey L.J. observed at paragraphs 8 and 9 of the judgment:

"8. Nowhere in the course of his judgment does the judge refer to the 1957 Act or the common duty of care which that Act imposes on occupiers in the position of the defendant, which is 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 purpose for which he or she is invited to be there. The simple question the judge had to ask himself was whether, measured by this standard, these steps were unsafe. It does not seem to me that he did so. This question is not answered by reference to foreseeability or causation, although the same facts may be relevant to fault foreseeability and causation. Thus the judge's findings that the lack of a handrail could cause difficulty was significant were not enough to make the defendant liable in the absence of a further finding that the steps were unsafe.

"9. The same can be said of the judge's findings about the step, although in this case he does say that it was a potential hazard. But that is not a clear finding that the height of the riser of the top step made the steps unsafe. By its reference to foreseeability I think this finding is as suspect as the judge'as earlier finding about the handrail. All steps are a potential hazard, particularly if one does not notice them. Again there is no proper finding about the lighting. Here, if this was a further reason for finding the defendant liable (and it is not clear whether it is or not), the judge's view is based solely on causation".

20. There, the issue in that case was whether there was a failure to take reasonable care to see that the visitor was reasonably safe in using the premises. Again, the reason why it was alleged there was a breach was the physical state of the premises, namely the stairs and the absence of a handrail. The judge had erred there as he had not considered whether, measured by the relevant standard, the steps were unsafe.
21. In the present case, the failure to take reasonable care consisted of the alleged failure to respond quickly enough to restore power to the cell rather than the physical state of the premises or fixtures as in the Pierce and the Hope v Manning cases. It was alleged that that failure to take reasonable care meant that the visitor would not be reasonably safe in using the cell for the purpose for which he was there.
22. The judge expressly referred to the provisions of section 2 of the Act and set out the section in the judgment itself. Furthermore, as appears from paragraph 42 of the judgment, set out above, the judge expressly addressed the question of whether the Defendant had failed to take such care in as all the circumstances was reasonable to see that the Claimant would be reasonably safe in using the cell. The judge set out why he considered there was such a failure. That appears from paragraph 41 of the judgment. The senior officer was told about the power failure but he was not told, and should have been told, that the Claimant who had reported the power failure was concerned that he had reduced mobility and was less able to look after himself when the lighting conditions in his cell were as poor as they were. The urgency should have been communicated to the senior officer and had it been the senior officer would have been rectified the problem within a reasonable time which could have been as little as ten minutes. Furthermore, that was in a context where the reasonable time for dealing with power failure was 15 to 20 minutes and the officer took far longer to restore power in the present case.
23. In the circumstances, therefore, the judge applied the right test. He considered whether the Claimant had established whether the Defendant had failed to take such care as in all the circumstances was reasonable to see that he would be reasonably safe in using his cell. The judge found, on the facts, that the Defendant had not. That breach of duty caused the accident as the judge found earlier in his judgment. In my judgment, the judge did apply the relevant test and reached a conclusion on that issue that, on the evidence before him, he was entitled to reach.
24. Mr Taussig also relied upon the fact that the lighting conditions in the cell would be the same at night (with some light from other sources outside the cell) and if the Claimant had tried to go to the toilet at night the accident would have happened in the same way. He therefore submitted that it was illogical and wrong to find that, objectively, the cell was not reasonably safe at about 20.45 p.m. when the accident occurred. The question, however, is whether the Defendant had failed to take such steps as in all the circumstances were reasonable to ensure that the Claimant "will be reasonably safe in using the premises". At 20.45 p.m. the Claimant would be in his cell and would expect to be able to move around and, amongst other things, go to the toilet. The Defendant did not take reasonable steps to ensure that he would be reasonably safe in his cell at that time as they failed to respond within a reasonable time scale to the power failure in circumstances where they knew, or should have known, there was a degree of urgency.
25. If the accident had occurred during the night, different factual questions would arise. One question would be whether the Defendant had taken such care as was reasonable in those circumstances to ensure that the occupant of the cell could use it safely (assuming, for present purposes, that the use of the cell during night time hours involved not merely sleeping but also moving around to a certain degree, for example, to use the toilet). The Defendant would not have failed to take reasonable care because of any failure to remedy a power failure within a reasonable time scale in those circumstances. Rather, the questions that would be potentially relevant would be likely to involve consideration of whether, for example, the layout of the cell and the location of light switches involved any failure to take such care in all the circumstances as was reasonable to ensure that the occupant would be reasonably safe in using the cell at night. Mr Taussig focusses on the question of whether the premises (i.e. the cell) were, as an objective fact, safe. He focusses on the fact that the quality of the lighting would be the same at the time of the accident as it would during the night and therefore focusses on whether the cell would be reasonably safe at night and, on that assumption, seeks to answer the question of whether the section 2 duty had been breached. That duty, however, requires consideration of whether the Defendant (1) had taken such steps as in all the circumstances were reasonable (2) to ensure that the occupant of the cell was reasonably safe in using the cell for the purposes for which he was there. Consideration of the amount of lighting in the cell, although relevant, deals with only part of the requirements of section 2(2) of the Act. Even assuming that a cell with lighting at the level in place at the time of the accident would not ensure that the occupant was reasonably safe in using the cell at any time of the day or night (and I make no observations on the correctness of that assumption) it would not address the other question of whether the level of lighting involved a failure to take such care as was reasonable in all the circumstances.
26. Furthermore, the judge did not, as submitted, base his conclusions on the fact that the accident was caused by the reduced lighting in the cell. The judge did not assume that, merely because the accident was caused by the lighting condition, therefore the requirements of section 2 of the Act were met. Rather, the judge carefully considered whether the Defendant had failed to take such care as in all the circumstances was reasonable to see that the Claimant would be reasonably safe in using his cell, and concluded that there had been such a failure, and he also considered whether that failure caused injury to the Claimant. He did not make the error identified by the Court of Appeal in Pierce or Hope v Manning.

THE SECOND ISSUE – THE STANDARD OF THE DUTY

27. Turning to the second issue, the Defendant in essence alleges that the judge was wrong to find that the delay of 15 to 20 minutes amounted to a breach of section 2 of the Act as it placed an unreasonably high standard of care in all the circumstances. Mr Taussig, for the Defendant, submitted that the period of delay was small and, on an objective view, the magnitude of the risk from walking in the cell was low. He submitted that the judge erred in imposing a high standard of care simply because members of the Defendant's staff accompanied the Claimant to hospital and they, and the senior officer, should have known that the Claimant had had an operation. Further, he submitted that the finding that the Claimant was handicapped was an overstatement of his disability and the requirement for the Defendant to react more urgently than would otherwise be the case was unreasonable. Further, Mr Taussig submitted that the judge was, effectively, requiring the Defendant to carry out a risk assessment to assess precisely the medical condition of all prisoners at all times and to tailor responses to electrical power failures according to a scale of vulnerability of falling in unusually dark conditions. Mr Taussig relied upon extracts from Charlesworth & Percy on Negligence (13^th edition) and the decision in Sutherland v Hatton [2002] P.I.Q.R. 241 indicating that, while the standard of care is flexible and reflects the circumstances and evidence in a particular case, the courts should not lose sight of the implications of a decision for society generally and should not set an unrealistic standard of care. He also referred to the magnitude or risk and the likelihood of injury and the gravity of the consequences as relevant to the assessment of the standard of care, relying on extracts from Charlesworth & Percy on Negligence and the decision in Glasgow Corporation v Muir [1943] AC 448.
28. The judge found that, on the particular facts of this case, the Defendant had not acted with such care in all the circumstances as was reasonable to ensure that the cell was reasonably safe for the Claimant to use. That conclusion was based upon the fact that the Claimant had expressly told the officer when he reported the power failure that he was concerned about the power being off as he had only just come out of hospital and the officer should have reported that fact to his senior officer but did not do so. The senior officer took longer than was reasonable in normal circumstances to restore the power failure to the cell. On those particular facts, the judge found that there had been a failure to take reasonable care as prescribed by section 2 of the Act. That was a decision based on the particular facts of the case and was a conclusion that the judge was entitled to reach on the evidence before him.
29. In particular, the decision does not involve imposing an unduly high standard of care. A number of the Defendant's submissions do not, in fact, accurately reflect the findings and reasoning of the judge. It is not a case of the judge simply treating a delay of 15 to 20 minutes beyond a target time as involving a breach of the duty in section 2 of the Act. The essential findings, for this purpose, are that the officer was told that the power was out in the cell and that there was a degree of urgency as the Claimant had recently come out of hospital and had mobility problems but the officer failed to pass that information on. Further, the time taken to restore the power was longer than was normally the case. The Defendant's senior officer could, and would, have taken steps to restore the power sooner if he had been told of the circumstances and the need for urgency. The failure to restore the power within normal timescales in circumstances when the Defendant knew, or ought to have known, of the need for urgency in this particular case led to the conclusion that they had failed to take reasonable care.
30. Furthermore, the judge was not basing his conclusion on the fact that the Defendant's officers had accompanied the Claimant to hospital and should, therefore, have known that he was more vulnerable. The judge's conclusion was based on the fact that he accepted the Claimant's evidence that he had told the officer that he was concerned about the power going off as he had just come out of hospital and had difficulties with mobility. Further, reading the judgment fairly and as a whole, the judge used the description 'handicapped' at one point in his judgment as a shorthand word describing the fact that the Claimant had mobility problems: he was not, as submitted, overstating the extent of the Claimant's disability. Further nothing said by the judge in this particular judgment involves requiring the Defendant to carry out a risk assessment of the precise medical condition of all prisoners and then to tailor responses to power failures according to a scale of vulnerability to falling in unusually dark conditions. Rather, this is a case based on its particular facts and, in particular, what the officers were told and how quickly they could and should have responded to that information. The decision of the judge, on the particular facts of this case, does not involve imposing an unduly high standard of care. It was a decision which the judge was entitled to come to on the evidence before him.

CONCLUSION

31. The judge applied the correct approach to the assessment of whether or not there had been a breach of the duty of care prescribed by section 2 of the Act. He asked the correct questions and applied the correct law. His decision was one that he was entitled to reach on the evidence before him. Furthermore, his decision turned on the particular facts of this case and did not involve the imposition of an unduly high standard of care. For those reasons, this appeal is dismissed.