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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY

		Leeds Combined Court 1 Oxford Row, Leeds, LS1 3BG
		24/05/2018

Mr Justice Turner :

INTRODUCTION

1. The facts of this case are straightforward. On 13 August 2014, the claimant, aged ten years, was one of a small group of family and friends which went on an outing to Kirkstall Abbey. It was there that the defendants had provided a number of amusements aimed at young visitors. One of these was Hangar 51.
2. The general idea was that children would be equipped with laser guns to fire at each other inside the hanger which comprised a large inflatable structure divided into nine pods. It cannot be doubted that this was an activity both healthy and cathartic.
3. The laser fights had to take place in relative darkness. Otherwise they would be no fun and there would be no point in them. Thus the interior, although not completely dark, was dim enough for it to take a minute or so before the children's eyes became fully acclimatised to the gloom.
4. Separating the neighbouring pods within the hanger were changes in level which gave rise to a risk of tripping. Shortly after the claimant had entered he fell over one of the tripping points and the gun smashed against his front teeth causing serious injury.
5. The claimant brought a claim against the defendant in negligence which succeeded at first instance before His Honour Judge Saffman. The defendant now appeals to this court.

THE JUDGE'S FINDINGS

6. After the judge had delivered his ex tempore judgment, there followed one of those coolly polite exchanges between him and counsel for the losing party in which the lively prospect of an appeal was the elephant lurking in the courtroom.
7. In summary, in his judgment, and, subsequently, having been invited by the defendant's counsel to elaborate further upon his findings, the judge found that the defendant had been in breach of its duty to the claimant both by failing to warn him of the tripping points before he went into the hangar and by failing to ensure that the tripping points were made more readily visible by the application of fluorescent strips or the like.

THE GROUNDS OF APPEAL

8. The Grounds of Appeal comprise the following:

"The learned judge was wrong on the following grounds:

a. Set an unrealistic standard of care that failed properly to take account of the public liability dimension to the claim, the relatively low instance of injury, lack of serious past injury and the fact that the apparatus in which the claimant was injured was not in any way defective.

b. In considering what steps the defendant should have taken to meet the required standard of care he failed to apply s. 1 Compensation Act 2006.

c. On finding there to have been a breach of duty he:

i. Took into account evidence that was not in fact given as to the practicability of a particular preventative measure; and

ii. Failed to take into account significant evidence concerning the manufacturer's advice.

d. Failed to identify any pleaded breach of duty that was potentially causative of the claimant's injuries and apply the 'but for test'."

NO WARNING – BREACH OF DUTY

9. The claimant's unchallenged evidence was that he could not recall being told that there were tripping hazards in the hangar between the pods.
10. Of course, courts must, in cases such as this, resist the lure of hindsight bias as a result of which events known to have occurred are judged to have been more predictable than they actually were.
11. In this case, however, the defendant had prepared a risk assessment relating to the use of the hangar. It was dated 1 April 2014 which was some four months before the accident. One of the foreseeable risks which it identified related to tripping accidents. The relevant control measure was "participants to be warned about ridge between pods and about the potential to trip over them".
12. Those members of staff responsible for supervising the activity deployed a script which, for example, warned the children not to run. However, it contained no information about the tripping points.
13. A failure to implement a control measure in a formal risk assessment will not inevitably connote a breach of duty in negligence but in most cases it is likely to go a very considerable way towards it.
14. The accident history relating to the hangar reveals that there had been a number of recorded accidents which had occurred since the beginning of the 2014 summer season and prior to the one which had befallen the claimant. These included the following:

i) 5 August 2014 Trip/Gun hit mouth. Top lip cut. Attend St Georges.

ii) 7 August 2014 Trip/Gun hit head. Lump on forehead.

iii) 8 August 2014 Trip/Gun under chin. Medical advised. St George's for stitches.

15. Ten days after the claimant's accident, another child was recorded to have tripped as a result of which his gun hit his lips causing a deep cut in respect of which he was referred to St George's.
16. Against this background, counsel for the defendant realistically conceded in oral submissions that he could not sustain the contention that the judge's finding of a breach of duty in respect of a failure to warn was susceptible to appeal. Accordingly, in respect of this allegation, Grounds of Appeal (a) to (c) inclusive fell by the wayside.

CAUSATION – THE JUDGE'S FINDING

17. On the issue of causation, the defendant contended that the judge did not make a finding that the absence of a warning, as a freestanding breach, was causative of the accident.
18. I disagree.
19. During the course of his judgment, the judge held:

"42. Let me turn therefore to the question of causation because it is argued that whether the Council are in breach or not, it has not been established, the onus being upon the Claimant to establish it, that any breach of duty led to this injury. Mr Anderson's point here is that it was C's evidence that he saw the obstacle in any event, so warning him about it or even drawing his attention by fluorescent strips or in some other way would have made no difference.

…I do not accept that." [Emphasis added]

20. I interpret this passage as connoting that the judge was looking at the failure to warn and the absence of other ways of drawing the claimant's attention to the tripping hazard disjunctively by his choice of "or" as the appropriate conjunction rather than "and".
21. Then during the course of the post-judgment dialogue:

"MR ANDERSON: …which breaches do you find to be causative of the injury?

JUDGE SAFFMAN: Both…"

22. I am not persuaded that the context in which these comments were made casts any significant doubt on my conclusion that the judge's finding was that the failure to warn was a free standing cause of the accident in the "but for" sense.
23. This, however, is not an end of the matter. The defendant goes on to contend that, even if that is what the judge found, he was not entitled on the evidence so to do.

CAUSATION – WAS THE JUDGE'S FINDING SUSTAINABLE?

24. The claimant's account was that the accident happened about 30 seconds after he had entered the hangar and that his eyes had not yet become fully acclimatised to the dark.
25. He went on to say under cross examination that, just before the accident, he became aware of a difference in levels between the pods but in the dim light had perceived them to be higher than they actually were. The judge dealt with this evidence in his judgment thus:

"I accept C's evidence that he saw the obstacle, but he only just did so. His evidence was clear that because of the ambient condition he was not able to gauge the degree of the hazard about which he was dimly aware and the fall occurred because, by virtue on the ambient light conditions in which he found himself, he was not properly able to assess the degree of danger that this hazard presented. He was not, in other words, in a position to evaluate the risk of what he fleetingly saw in those dim conditions."

26. The defendant contends that the judge ought to have found that it had not been proved that a warning would have prevented the accident from happening. This is because the claimant had, from what he had already seen, become aware of the danger before the accident and so, by that stage, he was as fully informed as if a warning had been given. However, I find that a proper distinction is to be drawn between (i) a dimly perceived and, importantly, inaccurate awareness of some difference in levels in the fabric of the pods and (ii) actual knowledge, strengthened by a warning, that the difference in levels represented a tripping hazard if he were not careful.
27. In any event, the judge had the advantage over this court of hearing the evidence of the claimant and forming a view of how he would be likely to respond to a warning in the terms advocated in the risk assessment and how this wold have been likely to have impacted on his behaviour.
28. The parties agreed that if I were to find that the judge had not made a definite finding on the issue of causation of the failure to warn then I should resolve the issue myself rather that remit the case for further first instance consideration. I find that even I were wrong in my interpretation of the judge's comments on these issues I would, in any event, have reached the same conclusion as he did on the facts of this case.

CONCLUSION

29. The combination of the defendant's concession on the issue of breach of duty with respect to the failure to warn and my findings on the issue of causation render it unnecessary for me to deal with the judge's approach to the omission to provide fluorescent strips, or the like, to demarcate the tripping points. Upon this issue, I will make no further comment. This appeal is therefore dismissed.