Lovett v Arthur Andersen & Co & Ors [2003] EWCA Civ 1946

Case No B3/2003/0891[2003] EWCA Civ 1946
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(His Honour Judge Zucker)
Venue Royal Courts of JusticeDate Wednesday, 5th November 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE AULD
LADY JUSTICE ARDEN
MR JUSTICE JACOB
Between
KATHLEEN VERA LOVETTAppellant-v-
Between
ARTHUR ANDERSEN & CORespondentARTHUR ANDERSEN CONSULTINGRespondent(3)ACCENTURE (UK)Respondent
(Computer-Aided Transcript of the Palantype Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR A SMITH (instructed by T V Edwards London E1 4TP) appeared for Appellant.MR S BROWNE (instructed by Morgan Cole, Croydon CRO 1PE) appeared for Respondents.

J U D G M E N

LORD JUSTICE AULD: Jacob J will give the first judgment.

[2]MR JUSTICE JACOB: This is an appeal by permission of Mantell LJ from the judgment of His Honour Judge Zucker QC. It is the claimant's appeal in an action for personal injuries.[3]The claimant suffered an accident in the office block where she was employed by Arthur Anderson. She had worked in the building concerned for some time, but not on the floor where the accident occurred: she had worked in other parts of the building. Her employers, Arthur Anderson, had recently taken over the fifth floor. She was employed as a Systems Analyst and she was going to the fifth floor, for the first time, in order to retrieve some software from the software library which had recently been moved to the fifth floor. Previously it had been in the basement. She was given instructions as to where the library was, but they were inadequate, in that she was merely told to turn left out of the lift. This she did. She walked along the corridor, she went past a door to her left, which on the floors which she did know had the lavatories in, and she went on to the only other door, used the key pad number which she had been given, opened the door, stepped forward -- it was darkish -- looking for the light. There was a step of just over six inches. She did not see it. She fell and suffered injuries, unfortunately rather more than one might get from simply falling down a step.[4]In the room in which she had gone there was a lot of plant, because this was the plant room. On the outside of the doors to the plant room were a number of signs. They are best seen from the photographs. On the left-hand door there are three large signs. The top-most says, "Safety helmets must be worn beyond this point", and there is a picture of a man in a safety helmet. The second one says, "Use ear protection in this area". The third one says, "No smoking beyond this point." On the right-hand door is a much smaller sign, saying "Plant Room". The evidence which was accepted, was that the claimant did not see that, and would not have been able to see it, because she was not wearing her glasses.[5]The question is whether the employers are liable in negligence. The case has not been run on the Occupiers Liability Act. I am not sure it would have made any difference if it had. The negligence as pleaded was that she was given misleading or inadequate directions as to where to go. The judge perhaps accepted that. What he says (in paragraph 19 of his judgment) is this:
"I first have to consider whether negligence on the part of the defendants was a causative factor in this accident. If consideration is given to the particulars of negligence pleaded in the amended Particulars of Claim, the nub of the claimant's case is that she was misdirected to the plant room instead of the library. I readily conclude that on the information given to her and the fact that the code she was given opened the plant room door, Mrs Lovett was led to believe that the library was in the plant room. But that in itself, in my judgment, is not an allegation of negligence causative of the accident. It is not alleged that she was led into a trap or a dangerous situation, or that the step was inadequately marked. Nor did it of itself cause Mrs Lovett to fall."
[6]It may be that we are only dealing with allegations, rather than findings, of negligence. For my part I do not think it matters, because the operative part of the judge's judgment is really to be found in paragraphs 18 and 22. The nub of what he is saying -- and he had the advantage over us, although we have had very good photographs -- is that the claimant, if she had been looking where she was going, would have seen the step. He makes no express reference to the signs on the door when he comes to that finding; he simply says that she did not see a step which she could and should have seen, but that there were warning signs before then.[7]I will put myself, as best I can, in the Appellant's position. She had to pull open the door. There would have been a natural transition in the nature of the flooring. What she saw was dark, but not so dark that she could not have seen, had she been looking, the plant and machinery. We have a photograph taken from the outside of the door showing how much plant and machinery could be seen.[8]In effect, the judge came to the conclusion, having seen the site, that the cause of this accident was not any misdirection but simply that the claimant was paying inadequate attention. In short, the earlier inadequate direction of where to go was not the cause of this accident, nor was the fact that the plant room had this step, because in the judge's view -- and he has seen the place in question -- anyone opening the door ought to have seen the step.[9]I would dismiss this appeal.

LADY JUSTICE ARDEN:

[10]In this matter the judge set out the facts and then set out his conclusions, starting at paragraph 19. He begins by taking what I would call a pleading point. He held:
"If consideration is given to the particulars of negligence pleaded in the amended Particulars of Claim, the nub of the claimant's case is that she was misdirected to the plant room instead of the library. I readily conclude that on the information given to her and the fact that the code she was given opened the plant room door, Mrs Lovett was led to believe that the library was in the plant room. But that in itself, in my judgment, is not an allegation of negligence causative of the accident. It is not alleged that she was led into a trap or a dangerous situation, or that the step was inadequately marked. Nor did it of itself cause Mrs Lovett to fall."
[11]Accordingly the judge puts the pleading point at the outset of his conclusions, and it clearly had a strong influence on him. It is correct that the critical particular of negligence was a simple alleged misdirection or inadequate direction to Mrs Lovett to the archive library, when the defendant should have foreseen that she might, mistakenly, enter the plant room and fall. But it was clear that the case was put on a wider basis than that. For example, there was in evidence the opinion of a Miss Catherine Daniels, Senior Environmental Health Officer at Hackney Commercial Standards, and her opinion was, as expressed in her letter of 18th January 1999, that the underlying reason for the accident was the breakdown in the system for handing over control of the newly converted archive room from the stock exchange to the defendants. She said in her letter:
"Access to the room should have been denied until all the administrative procedures had been completed which would have included changing the access code on the door. Had this been changed before Miss Lovett mistakenly tried to gain access to the plant room, believing it to be the new archive store, the accident would not have occurred."
[12]Accordingly, the issues before the judge were wider than those pleaded before him. The judge, it seems to me, had to proceed on the basis that Mrs Lovett was given an inadequate direction as to where she would find the newly located archive and that it was an issue that the employer had failed to ensure that the key pad to the plant room was different from that of the other rooms forming part of the office accommodation.[13]The

judge then referred in his conclusions to authorities on the question of causation and he continued:

"21. Whether I ask myself the question: was any act or omission of the defendants an effective cause of the accident or materially contributed to it, the answer I reach is: No they were not. Persons are often subject to misdirection. In my judgment the defendants' acts or omissions provide the circumstances in which the accident occurred, but no more. ... 22. The simple truth of this matter, in my judgment, is that Mrs Lovett fell because she did not see a step which she could and should have seen. Her mind was on other things and she was not paying attention. She failed to take sufficient care for her own safety and I find that that was the primary and sole cause of the accident she suffered."
[14]Mr Simon Browne for the defendants submits that the question of causation was a question of fact for the judge and that this court should be slow to interfere. He refers to paragraph 5.30 of Charlesworth on Negligence. The final passage was read by the judge and it contains the following:
"When considering whether a claimant has established that injuries were caused or materially contributed to by negligence, the test to be applied is on the balance of probability and a cause can only be material if it is more than minimal, trivial or insignificant. Such an issue is eminently for the decision of the trial judge on the basis of medical or other evidence and the Court of Appeal should be slow to interfere."
[15]I bear that injunction in mind, and it is certainly correct, with respect, to primary issues of fact -- for instance, whether the type of injury caused could have been caused by the alleged negligence -- that the trial judge's findings will be such that the court will be very slow to set them aside. But where there are competing causes, it is open to this court to find that the judge's conclusion should be set aside if the judge fails to take into account causes which would have contributed to the loss but which are not apparent from the judge's final conclusion.[16]In this particular case it is necessary to take into account that the directions given to Mrs Lovett were inadequate and, on that basis, it was foreseeable that she would direct herself to the plant room. It was reasonable for her to think that the plant room was the archive, given that its location on the fifth floor was identical to that of her office on the third floor. In the third floor office there was also no step down or sunken floor, such as there was at the front of the plant room. Moreover, there is no suggestion that she was not a diligent employee. She had been given directions to find an object which could have been in the room which she thought was the archive, and she fell as she was looking for the light switch, which was on the right-hand side. The room was not automatically lit as you pulled open the door.[17]I have read the judge's conclusion in paragraph 22. He clearly considered that she could, and should, have seen the step. The judge had the benefit of a view of the premises and found in paragraph 18 of his judgment, before expressing his conclusion (as a result of his view) that, once the right-hand door to the plant room was open, the interior of the plant room nearest the door was illuminated, as was the shallow step leading into it. He held that the illumination came from the corridor lights and abundant natural light coming from a picture window to the right of the doors to the room. He made allowance for the fact that it was a different time of year when he did his view, that he expected the step to be there and that it was now marked by a broad yellow stripe. But, in expressing that conclusion, the judge also went on to say that her mind was on other things, that she was not paying attention and that she had failed to take sufficient care for her own safety.[18]As I see it, the judge failed to give any weight to the fact that she was carrying out her employer's instructions and that, on that basis, it was foreseeable that she would not give primary attention to her own safety but would wish to carry out those instructions. Also as I see it, it cannot be said that that factor would have been a minimal or trivial cause of the injury that subsequently ensued.[19]Accordingly, in my judgment, the judge has failed to take into account a factor which was relevant to causation. Accordingly this appeal should be allowed.

LORD JUSTICE AULD: I agree with my Lord, Jacob J, that the appeal should be dismissed. I do so because, despite the form of the particulars of negligence and the way in which the judge constructed his judgment, on a proper analysis of his findings and reasoning, the matter falls to be determined on the issue of a breach of duty of care, not causation. The judge in paragraph 18 of his judgment, after considering the largely undisputed evidence and after a careful view of the site, found as a fact that the step would have been very obvious to Mrs Lovett as soon as she opened the door. This is how he put it at paragraph 18, part of which my Lady has cited. He said:

"I have had the benefit of a view on the afternoon of 8 April 2003. What became clear as a result of the view is that once the right-hand door to the plant room is opened, the interior of the plant room nearest to the door is illuminated, as very obviously is the shallow step leading into it. The illumination comes from the corridor lights and the abundant natural light coming from the picture window to the right of the doors to the plant room. I allow for any difference in light between 8 April 2003 and 29 October 1998, the fact that I expected the step to be there, and that it is now marked by a broad yellow stripe."
That was a finding that the step, in the condition and the position it was, was not a hazard to an employee of the respondent in the position of the appellant. It was not something that the respondent should reasonably have foreseen as likely to cause her harm in the event of her approaching the door with a view to entering it in the mistaken belief that it was the room she wanted. The judge later in his judgment, approaching the matter as one of causation, said this at paragraph 22:
"The simple truth of this matter, in my judgment, is that Mrs Lovett fell because she did not see a step which she could and should have seen."
That, in my view, put in the context of all the evidence in this case, was, in reality, a finding on the facts of no breach of duty by the respondent. No negligence. Given the evidence before the judge and the careful view that he undertook of the site, that was a powerful finding of mixed fact and law that I would not feel able to disturb.[22]Accordingly, the appeal is dismissed.

Order

Appeal dismissed with costs.