LAVERTON v KIAPASHA (T/A TAKEAWAY SUPREME) [2002] EWCA Civ 1656

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE UPON TYNE COUNTY COURT
(His Honour Judge Walton)
[2002] EWCA Civ 1656Case No Case No: B3/2002/0970 CCRTFVenue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
LAVERTONAppellantKIAPASHA (T/A TAKEAWAY SUPREME)Respondent
Before
Lord Justice Peter GibsonLord Justice ManceLady Justice HaleChristopher Alldis (instructed by Hill Dickinson) for the AppellantAndrew Crouch (instructed by Smith & Graham) for the RespondentDate 19 November 2002

Lady Justice Hale:

The

[1]defendant appeals against the order made by HHJ Walton in the Newcastle county court on 23 April 2002 finding the defendant wholly liable for an accident suffered by the claimant in the defendant's take-away shop and giving directions for damages to be assessed.[2]The accident took place in the early hours of Friday 23 to Saturday 24 October 1999. The claimant (then aged 30) had been having a night out in Consett, County Durham, with her brother, sister and a friend. They had visited a number of pubs and ended the evening at a club. The ambulance man who took her to hospital noted that she had 'had a lot to drink', as did the Accident & Emergency department at the hospital, where the triage nurse noted 'alcohol +++' and in the clinical notes it is recorded that on her own account she had taken around 10 - 12 units that night (the comment in brackets after that reads '10 double bacardis = 20 units!!') and on examination smelt of alcohol.[3]After leaving the club they went to the defendant's take-away shop in Front Street. The shop was busy. The claimant estimated that there were 20-30 people in the shop, some in the queue and some waiting. As can be seen from the photographs, these are smallish premises: the measurements given by the defendant for the 'front of house' area were some 12'7" by 13'5" the claimant saw someone she knew ahead of her in the queue and stepped forward to speak to him. She slipped on her right foot and fell to the floor injuring her left ankle. She was wearing ankle boots with cowboy style heels about one and a half inches high. She thought at first that she had twisted her ankle. A taxi was called and took her home. But when she took her boots off she realised that she needed to go to hospital. An ambulance was called. At hospital it was discovered that her ankle was broken and badly displaced.[4]The Judge accepted that the claimant had slipped because the shop floor was wet and slippery. The claimant said that it had been raining heavily when they went out earlier that evening, but the rain had slowed to a drizzle when they left the club, and stopped by the time they reached the takeaway. But customers on a busy night walked wet and dirt into the shop. The claimant said that the area of water started at the door of shop and went the entire length of the queue. The judge found that there was a 'considerable' (p 6, line 24), 'significant' (p 7, line 5), or 'substantial' (p 7, line 12) quantity of water.[5]The question therefore was whether the defendant was in breach of the common duty of care towards visitors, as defined in section 2(2) of the Occupiers' Liability Act 1957: ."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."[6]The defendant had no recollection of the night in question as he had not noticed the accident, which had not been drawn to his attention until some time later. But he pointed to three precautions which he had taken. First, in 1996 the floor had been re-laid using slip-resistant tiles from a reputable manufacturer. A brochure was produced from which it appears that there were three possible surfaces - a normal tile with one plain face and one profiled face and a carborundum aggregate tile. The carborundum offered the best slip resistance but the defendant could not be sure that these were the tiles used. The photographs show that the tiles were laid in a chequerboard pattern of plain and profiled surfaces. The brochure says " The plain face The grainy surface of the plain face generally offers sufficient slip resistance for most applications where normal footwear is used. It also allows easier cleaning than other slip resistant options. The profiled face This is recommended for ramps, slopes and barefoot traffic." The judge found that this was not enough by itself, not because the defendant should have used different tiles, but because the defendant himself appeared to concede that the floor was still slippery when wet. He took precautions for removing spillages and excess moisture on rainy days.[7]Secondly, the defendant had a doormat, of the conventional coconut matting type, but not fixed either in a mat well or in any other way. The claimant said that it was not at the door and the defendant accepted that it might have been kicked out of the way. The judge found that it had become displaced at the time of the accident and thus was not fulfilling its function.[8]Thirdly, the defendant had a system for mopping up. He kept two mops and a bucket at the back of the shop to deal with spillages and water brought in by customers. He said that on busy nights they mopped up six or seven times. But obviously they could not do so when the shop was so full: "When we have 20 or 30 in the shop, you cannot mop".[9]The judge however found that given the amount of water there was that night reasonable care had not been taken in operating the cleaning system: the tiles were slippery when sufficiently wet, no mat was in place, substantial quantities of water had got in, and the system designed to remove it was not effective in doing so. The judge also declined to find any contributory negligence. He accepted that the claimant had taken a considerable amount of alcohol that evening. But there was no evidence that she was unsteady on her feet. She said that she was sober. The judge accepted her evidence. The arguments on appeal[10]The defendant challenges the finding that he is liable at all in the circumstances. But if he is at fault, he challenges the finding that there was no contributory negligence on the part of the claimant.[11]He points out that the occupier's duty is doubly qualified, to take reasonable care to make his premises reasonably safe for his visitors. It was asking far too much of him in all the circumstances of the case to expect him in effect to have a dry floor. This is a small business. It was very busy that night, with a large number of customers coming and going in a confined space. It had been raining heavily earlier in the evening although the rain had stopped by the time of the accident. It is not reasonable to expect such a business to remove all water from the floor so that no-one, whatever the circumstances, will slip.[12]The judge appeared to have accepted that the mere presence of water on the floor, walked in by customers, constituted a danger giving rise to liability unless it was removed. But there is a clear difference between mopping up greasy spillages, which pose a particular hazard in such premises, and dealing with the naturally occurring phenomenon of walked-in water, which applies to all premises everywhere. This is not an unusual danger. It happens all the time. It is not concealed. It is something of which customers are or ought to be aware. It should be obvious to them.[13]Furthermore, this is not a phenomenon which can be completely avoided even with a mat in place and regular mopping. Regular mopping does not necessarily remove all moisture from the floor and in any event is impracticable on busy night like this. Mats can only do so much of the work (depending upon how careful customers are to wipe their feet as they come in). It is not reasonable to expect every small shopkeeper to have a fixed mat in place.[14]As for contributory negligence, it is reasonable to expect customers to take particular care when a tiled floor is likely to be wet. The claimant had had a considerable quantity to drink. Whatever her own view of her condition it was probable that it had contributed to her fall. She is a large lady and was wearing ankle boots with comparatively high heels. In such circumstances, she should have been more careful when making a sudden move forward. The risk was or should have been obvious to her.[15]For the claimant it was argued that all the judge was doing was requiring the shopowner actually to undertake the very precautions which he himself had thought appropriate. The slip resistant floor could not be criticised. But the mat was not there and the mopping was not taking place while the shop was so busy. Water could be a hazard. Unlike spillages it was less likely to be visible. Discussion[16]The occupier's duty of care is the same in all cases but its application depends, and depends crucially, upon 'all the circumstances' of the particular case before the court. He has to take 'reasonable' care to see that his visitors are 'reasonably safe'. He does not guarantee their safety. The shop-keeper's duty was put this way by Lord Goddard CJ, in Turner v Arding & Hobbs Ltd [1949] 2 All ER 911, at 912:
"The duty of a shopkeeper in this class of case is well-established. It may be said to be a duty to use reasonable care to see that the shop floor, on which people are invited, is kept reasonably safe, and if an unusual danger is present of which the injured person is unaware, and the danger is one which would not be expected and ought not to be present, the onus of proof is on the defendants to explain how it was that the accident happened."
Hence, in Ward v Tesco Stores Ltd [1076] 1 WLR 810, this Court held that where a supermarket customer had slipped on yoghurt from a pot which had fallen on the floor, it was not for her to show how long it had been there. This sort of accident did not happen in the ordinary course of events if the floor was kept clean and spillages dealt with as soon as they occurred. The probability was that the spillage had been on the floor long enough to be dealt with. Hence there was an evidential burden on the defendant to show that accident did not arise from want of proper care on their part.[17]The judge in this case found it unnecessary to resort to the principle in Ward v Tesco . In my judgment he was right not to do so. There was no question that the floor was wet. The issue then is what it is reasonable to expect a shopkeeper to do about it. There is a distinction between particular dangers such as greasy spillages, which it is reasonable to expect a shopkeeper to deal with straightaway, and the general problem posed by walked in water on a wet night, which can never be completely avoided. Everyone coming in from the wet outside to the drier inside brings water with them on their feet.[18]A take-away shop or other food outlet has to consider cleanliness and hygiene as well as safety. It is reasonable for him to have a tiled rather than a carpeted floor (indeed it would not surprise me to learn that the food hygiene regulations required a surface which could be easily cleaned). Some tiled surfaces are slippier than others are when wet and it is reasonable to expect him to choose a surface which is more rather than less resistant to slips. In doing so he should go to a reputable manufacturer, but he is entitled to rely upon their promotional literature unless and until experience shows that this is over-optimistic. The manufacturer's brochure for these tiles has already been quoted. The defendant's uncontradicted evidence was that there had been no previous incidents of this sort.[19]It is not reasonable to expect such a surface to be kept dry at all times. If the judge was saying that the defendant should have done so, then in my view he was wrong. But wetness does increase the risk of slipping and it is reasonable to expect the shopkeeper to do something to prevent and control it. After all, there is not much the customer can do about it: she may be expected to wipe her feet on a mat but not to mop the floor. In some large businesses it may be reasonable to expect stringent precautions at the shop door, including mats large enough to absorb the moisture from large numbers of customers who do not wipe their feet and/or a member of staff stationed near the door to mop up as required. Even this is unlikely completely to eliminate the problem, for most mopping operations leave some moisture on the floor unless it can be closed off while it dries. Mopping up spillages, while decreasing one type of risk, is likely to leave a damp floor for a while.[20]The question is what was reasonable to expect of the defendant in the particular circumstances of this case and whether anything else would have made a difference.[21]In my view, it would not. A doormat is a sensible precaution on both hygiene and safety grounds but it would be going too far to say that every business of this type must have a fixed doormat: many do and many do not and there are no doubt arguments either way. More importantly in the present case, unless it filled a large amount of the floor space, thus bringing a different problem, it would not eliminate the risk of enough water being brought in at very busy times to make the floor slippery. Mopping is practicable outside peak times, but has the limitations already mentioned. At busy times in a business such as this, the defendant must be right that it is simply not practicable to mop up the water as it arrives. The only solution would be to close the shop, which he can only be expected to do if the customers cannot otherwise be reasonably safe.[22]The reality is that at such times the customers can be reasonably safe if they take reasonable care for their own safety. The unchallenged evidence of the claimant's two female companions was that it was obvious that the floor was wet. This cuts both ways. If the floor had been swimming wet so that no-one could walk on it with reasonable safety, then the shopkeeper should undoubtedly have noticed and done something about it, even closing for a short time if necessary. But the evidence went nowhere near supporting this. The judge himself wavered from 'considerable' to 'significant', to 'substantial' quantities of water. The more obvious such water is, the greater the need for the customer to take care. But all floors are to some extent slippery when wet.[23]In my view, in that particular shop, at that particular time, it was not reasonable to expect the shopkeeper to ensure that the mat was in place and mop the floor often enough and efficiently enough to prevent its being wet, even significantly or considerably so. To suggest otherwise is a counsel of perfection imposing a near strict liability which the law does not at present do. I would therefore allow the appeal and dismiss the claim in its entirety.[24]Had I not reached that conclusion, however, I would undoubtedly have found that the claimant had not taken reasonable care for her own safety. The judge, while finding that she had taken a considerable amount of alcohol that evening, accepted her evidence that she was sober. If that is a finding that she was wholly unaffected by the alcohol she had taken, then with respect it cannot be right. Her own account to the hospital doctor was that she had taken 10 - 12 units, which undoubtedly qualifies as 'a considerable amount'. She may well have thought that she was sober but, like many drivers who used to assert that they were perfectly safe to drive after drinking heavily, she must have been wrong. That may be one explanation for her apparently not noticing that the floor was wet until after she had slipped and fallen onto it, despite the fact that it was obvious to others. It may also explain why she stepped forward to greet someone ahead of her in the queue in such a way as to lose her footing. Her size and her footwear will have added to the risk of her doing so. The point was not whether the drink, or anything else, made her unsteady on her feet, but whether in all the circumstances she had taken the care which a reasonable person would take when walking on this obviously wet and potentially slippery floor. She cannot have done so.[25]If my conclusion had been that the defendant should have reduced, if not entirely eliminated, the wetness on the floor, then I would assess their respective responsibility, balancing their respective blameworthiness and its causal potency, at 50% each. But for the reasons already given, I would not find the defendant to have broken his duty of care in the particular circumstances of this case.

Lord Justice Mance:

[26]I have read in draft the judgment delivered by Lady Justice Hale, and adopt with gratitude her statement of the facts, the law and the issues in paragraphs 1-20. I am unable however to agree with her in the result. That said, the difference between us relates simply to the issue whether there was negligence on the part of the defendant. Considering, as I do, that there was such negligence, I share the view which Lady Justice Hale expresses in paragraphs 24-25, that there was on that basis, and for the reasons she gives, a failure on the part of the claimant to take reasonable care for her own safety, and that liability should then be apportioned 50/50.[27]The judge reached his conclusion that the defendant had failed to take reasonable care for the claimant's safety, having regard to four considerations:(i) the tiles were slippery when a sufficient quantity of water was on them;(ii) a mat which would have assisted in preventing moisture being received into the premises was not in position; in this connection, it is necessary to note, first, that in his statement the defendant said that the mat was kept just inside the door "to ensure that any water brought in on the feet of customers is kept to a minimum" and, secondly, that in evidence he conceded that the mat was not fixed and that, when there was a number of customers present in the shop, it would be displaced,(iii) either "considerable" or "significant" or, as the judge finally put it, "substantial" quantities of water had entered into the premiuses, and(iv) a system designed to remove that water had not actually been effective in doing so. The last consideration derived from the defendant's own evidence that he took steps to keep an eye out for rainwater carried into the shop and to have it removed by the use of mops and a bucket. The judge said expressly that he did not accept that "the system of cleaning, if it existed, had in fact been operated or operated with sufficient care or sufficient frequency on this particular evening". Later the judge referred to an absence of explanation as to "how the water upon which the claimant slipped got to where it was and remained there".[28]Tiles are no doubt one sensible form of flooring in a take-away shop like the present, although there are probably other, somewhat softer composite materials which are also durable, hygienic and easily cleaned. That even non-slip tiles may be slippery when wet is clear. The risks presented by water on the tiles were acknowledged by the defendant, just as they should have been clear to the claimant. The presence of substantial numbers of customers in this small shop would preclude cleaning up of any moisture, during periods when such numbers of customers were there. But it had been raining all evening from at least 7.00 p.m. and the rain had been heavy. By the time the claimant set off for the shop from the club, there was only a drizzle, and by the time she reached the shop it had stopped. The shop was then full.[29]The heart of the judge's reasoning as I see was that there would and should have been materially less water on the floor, if the mat had been in place and/or the system of cleaning up water had existed or been operated, in the way described by the defendant himself, over the course of the evening viewed as a whole. As to the mat, whilst no criticism can attach to the absence of some form of well inside the door, I cannot think that it is satisfactory to install (and presumably to an extent rely on) a mat inside the door, in order to mop up some excess water, in circumstances where it was known that customers would soon be likely to kick it aside. Some form of fixing would seem an obvious step to take. As to the presence of water, it is of course entirely understandable that the defendant's take-away should be full after clubs closed in the small hours of Saturday morning. But it seems most improbable that it was similarly occupied throughout the whole or even most of the earlier evening. There must have been opportunities for the defendant to observe whatever was the state of the floor. It is true that rain would continue to lie on the ground outside after the rain died down, and to be carried in. But the judge was, it seems to me, entitled to conclude that the situation at the time when the claimant entered would have been materially different as regards water on the tiles inside the shop, if the mat and/or the system, on both of which the defendant relied to keep the floor safe, had been in place and in operation.[30]For these reasons, I would uphold the judge's conclusion that negligence was established on the part of the defendant, but allow the appeal to the extent only of reducing the claimant's recovery to 50%, on account of her own failure to take reasonable care for her own safety.

Lord Justice Peter Gibson:

[31]The primary issue for the Judge was whether the Defendant breached the duty prescribed by s. 2(2) Occupiers' Liability Act 1957 and owed to the Claimant to take such care as in all the circumstances of the case is reasonable to see that she, as a visitor, would be reasonably safe in using the premises for the purposes for which she was invited or permitted by the defendant to be there. That issue is essentially one of fact. It goes without saying that an appellate court will be slow to interfere with the determination of the trial judge who has heard all the evidence on such an issue.[32]Nevertheless it is important that in the determination no unrealistic standard of care should be set by the trial judge. In this case Potter L.J., in granting permission to appeal, thought it arguable that too high a standard had been imposed.[33]The relevant circumstances seem to me to have been as follows:(1) The premises of the Defendant were a small take-away shop in Consett with an area measuring only 151" x 161" in which customers could stand or sit.(2) At about 1 a.m. on Saturday 22 October 2000 when the Claimant's accident occurred, there were up to 30 people in the shop, though only 4 to 5 in the queue waiting to be served.(3) It had been raining from at least 7 p.m. the previous day, the rain had been heavy but had become a drizzle as the Claimant's evening ended and by the time she entered the shop the rain had stopped.(4) The floor of the shop was tiled with slip-resistant but non-absorbent tiles purchased from a reputable manufacturer.(5) The floor was wet, the water starting at the door and running the length of the queue, and as people came into the shop they brought in more water.(6) The Defendant had provided a doormat on which customers could wipe their feet, but it was not fixed and had been displaced by the time the Claimant entered the shop.(7) The Defendant kept two mops and a bucket at the rear of the shop so that if there was any spillage from food or water was brought in by customers, the Defendant or his staff could quickly deal with it.(8) The Claimant was aged 30 at the time of the accident, 5'6" in height and a little over 20 stone in weight, was wearing ankle boots with 1 ½" heels, and had had a lot of alcohol to drink (10 to 12 units) and smelt of alcohol when examined in hospital.(9) The Claimant slipped when taking a step forward to speak to someone ahead of her in the queue.(10) The Defendant had known no previous slipping accident in the 4 years he had been in occupation of the shop.[34]The Judge's finding that the Claimant slipped on the wet tiles is not in dispute. In finding that the Defendant was in breach of his duty, the Judge gave 3 reasons:(1) The floor could present a danger when water was upon it.(2) The doormat was not fixed and at the time of the accident was not fulfilling its purpose of taking up moisture from the feet of customers coming into the shop.(3) The system of cleaning the floor, using the mops and bucket, was not operated, or not operated with sufficient care or frequency that evening.[35]I shall consider those reasons in turn.[36]As to the first reason, I agree that a wet floor does present a danger. But when the wetness comes from rain brought in by the feet of customers, that danger seems to me both obvious and unavoidable. It might have been otherwise if the Defendant on a fine day had mopped the floor, leaving it wet, or if there had been some spillage of food which the Defendant could reasonably be expected to clear up. It was entirely reasonable for a take away shop to use non-absorbent tiles which were slip-resistant.[37]As to the second reason, while the Judge was entitled to find that the mat was failing to fulfil its purpose, it is unrealistic to think that the presence of the mat at the door, if it had been fixed there, would have prevented the floor from becoming wet and would have avoided the accident. I say that because of the length of time it had been raining and the large number of customers in the shop at the time of the accident.[38]As to the third reason, the Judge appears to have been of the view that it would have been reasonably practical for the Defendant to have removed the water from the floor by mopping it before the Claimant took her place in the queue and that that would have avoided the accident. But mopping would not leave the floor completely dry and it would have continued to present a danger. Further I have difficulty in accepting that it would have been reasonably practical to expect the Defendant to mop the floor at a time when there were so many in such a confined space. It may be that the Judge thought that the water seen by the Claimant represented the accumulation of all the water walked into the shop throughout the evening and that the Defendant had failed to take advantage of opportunities to mop the floor when it was less crowded. I do not know on what evidence before the Judge such a conclusion was reasonably open to him. It appears to have been an inference merely from the amount of water which the Claimant saw. I respectfully doubt the validity of that inference, given the number of customers in the shop. As the Judge found, "As people were coming into the shop, they were bringing in more water". I do not think it reasonable to expect a person in the position of the Defendant to have a system which would prevent the floor being wet from customers' feet on a rainy evening, still less when the shop was so busy.[39]For these as well as the reasons given by Hale L.J., despite my sympathy with anyone who suffers so serious an injury as the Claimant did, I have reached the conclusion that the Judge did impose too high a standard of care in the particular circumstances of this case and that the Defendant was not in breach of his common duty of care. I would allow the appeal, set aside the order of the Judge and dismiss the action.[40]Had I been of a different view on the common duty of care, I too would have differed from the Judge's view on contributory negligence and reduced the Claimant's recovery by 50% because of her failure to take reasonable care when moving on a manifestly wet floor.

Order

Appeal is allowed, the order of His Honour Judge Walton set aside and judgment entered for the defendant. The Claimant is to pay the costs of the defendant (of the appeal and of the hearing in the county court) subject to determination for the purposes of section 11 of the Access to Justice Act 1999, such determined to be postponed. Detailed assessment of the claimant's costs persuant to paragraph 49 of the Community Legal Service Funding Order 2000. (Order does not form part of the approved judgment)

Cited in 1 later judgment