Brioland Ltd. v Searson [2005] EWCA Civ 55

Case No B3/2004/1299[2005] EWCA Civ 55
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HHJ COLLINS)
Venue Royal Courts of JusticeDate Monday, 24 January 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE BUXTON
LORD JUSTICE MAY
LORD JUSTICE SEDLEY
Between
BRIOLAND LIMITEDAppellant-v-
Between
LYDIA MARY SEARSONRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR WILLIAM NORRIS QC AND MR LEE EVANS (instructed by Berrymans Lace Mawer) appeared for AppellantMR JAMES COUNSELL (instructed by Ian Newbery & Co) appeared for Respondent
J U D G M E N T

LORD JUSTICE BUXTON:

This

[1]appeal from a decision of HHJ Collins in the Central London County Court concerns an accident that happened regrettably as long ago as 8 September 2000 at the hotel premises operated by the defendants. The case was a short one in front of the learned judge. We were told that it occupied no more than just over half a day, and it raises a simple question for this court, as it did for the judge.[2]The claimant, Mrs Searson, was a lady who was 82 years of age at the time of the accident, but she was in good health, and the judge who saw her give evidence recorded that fact and also that she appeared, to him at least, to have perfectly good physical mobility.[3]She was at the hotel to attend her granddaughter's wedding, which was taking place in a suite of rooms slightly removed from the main premises of the hotel. The entrance to that part of the hotel, described as the conference centre, required people to pass through two sets of doors: inner doors and external doors. The two sets of doors appear to have been of the same construction, but the outer doors were different in that they led on to a car park, and there was in the entrance to the doors an upstand, so described, some 2.8cm above the flush level of the floor. They led to a step or steps up which a person coming into the hotel would have to climb before entering the doors.[4]This entrance was not the main entrance to the hotel, but it was regularly and frequently used by large numbers of people. Indeed, it was part of the defendant's case, as I shall shortly mention, that very large numbers of people had passed through the doors since the hotel opened. Mrs Searson was the first one to suffer an injury.[5]Mrs Searson's evidence, which was accepted by the judge, was that she wished to speak to a relative of hers, whom she had not seen for some time and whom she thought she would find in the car park already described. Going out of the door, she looked ahead in an attempt to see this person and tripped over the upstand, suffering unfortunately quite severe injury.[6]She perfectly well accepted when the matter was put to her that she would have seen the upstand, that it was visible to anyone who looked for it, but that she did not expect to find such an upstand there: did not look for it and did not see it. Her case as described by the judge in terms that are the subject of comment by Mr Norris QC on behalf of the appellant, and to which I shall have to come shortly, is that if a person is entering into a hotel or similar premises it is not surprising that one has to step up from the outside over a step or sill, such as this was, but if leaving the premises what one expects to find is different. It was not normal or not to be expected that such a sill would be present. The case shortly was that steps should have been taken either to remove the obstruction, or to have a simple notice saying something like "watch the step".[7]The judge correctly directed himself that the case arose under section 2 of the Occupier's Liability Act 1957, effectively the same test as in a negligence case: the duty of the occupiers being to see that the visitor was reasonably safe in using the premises for the purpose for which she was present. That is a straightforward issue of judgement for the learned judge.[8]This case, as I have said, was a common type of case with no complications whatsoever of the sort that county court judges hear hundreds or thousands of times a year throughout the county court system. The question does not involve complicated matters of law; it is simply or almost entirely a matter of the judge's good judgement in deciding whether the very broad test imposed by the Act is met in the particular circumstances. This court will hesitate long before it interferes with such a conclusion. It will need to have demonstrated to it that the judge has erred in law in his approach to the facts.

The judge said this very briefly in paragraph 15 of his judgment:

"So here is the claimant, who in my judgment has acted perfectly reasonably, perfectly normally, with nothing to warn her of a possible projection in the floor impeding her access to the outside, who tripped over it, and the only answer to her claim effectively is that she should have looked where she was going. But why she should have looked where she was going defeats me. It seems to me that there was no warning, no reason whatsoever why she should have expected something to be sticking up out of the floor on her way out."
He then applied that, if I may respectfully say so, robust judgement to the terms of the Act and found in favour of Mrs Searson.[10]Before us today, in appropriately succinct submissions, Mr Norris QC argues that there was an error of law, in that there was no sound evidential basis for concluding that the premises were not reasonably safe.[11]I will deal with the five matters of which Mr Norris complains. Before doing so, however, I should say that there was a separate ground of complaint which concerned the evidence of a Mr Walsh. The judge rejected most of that evidence. It is necessary to deal with this point now because part of Mr Norris' complaint is that there was evidence in Mr Walsh's report that the judge should have given attention to and which would have illuminated the points of complaint had he in fact admitted it.[12]Mr Walsh was instructed as a joint expert. The agreed application to the judge who made that order (not HHJ Collins) said that Mr Walsh was to report on "causation". That, it seems to me, was a wholly inappropriate order. There was no reason why any expert should report on causation so broadly stated. Had there been pleaded issues in the case, which there were not, that for instance sought to rely upon the normality of the arrangements at the defendants' hotel or sought to argue that it would either be impossible or unreasonably expensive to make different arrangements, then an expert of some sort -- presumably a building surveyor, or some other expert in the building industry -- might well have been expected to report on that. But the upshot of Mr Walsh being given this very general brief was that he produced a very general report.[13]It is quite right, as Mr Norris reminded us, that Mr Walsh's credentials for so reporting appear to have been accepted by both sides. But for my part, I have found it difficult to identify in Mr Walsh's extensive curriculum vitae and statement of his qualifications any specific qualification that directly relates to any question in issue in this case. I note that he is a member of the Chartered Institute of Building Service Engineers, but that would not seem relevant to the present point because it does not involve building services or plumbing, with which Mr Walsh is familiar, but building construction. Be that as it may, the judge did not rely on any such point in excluding the major part of Mr Walsh's report. What he did accept from Mr Walsh's report, and what is very valuable, is a set of photographs and of dimensions which made it very clear to the judge what the premises had looked like and what view Mrs Searson had of the door as she approached it.[14]The conclusions which the judge did not accept or did not act on were as follows, summarised in page 5 of Mr Walsh's report:
"1. The metal threshold protrusion from the floor has the same height dimension as traditional wooden thresholds. 2. The stepped entrance and exit found to be in compliance with 1985 Building Regulations Approved Document 'M'. 3. After watching customers and visitors during my visit on 12 May 2004, there appeared no trip hazard for the duration of my observation."
[15]So far as Mr Walsh appeared to be saying in broad terms that this upstand was not in fact a hazard it was not open to him to do so, and the judge correctly excluded that part of his evidence. Whilst it is the case that what used to be called the ultimate issue rule is no longer binding in English law after the implementation of section 3 of the Civil Evidence Act 1972, nonetheless it is still not appropriate for an expert to give his opinion on a question such as negligence, which the judge has to decide, because that is a question for the court. Those considerations are set out in the 9th edition of Cross and Tapper at page 519.[16]So far as the judge excluded first of all Mr Walsh's evidence as to the commonality of this type of threshold and secondly as to compliance with the Building Regulations, I would say as follows. First of all, so far as this being a common practice:(a) there was no issue as to that matter because it was not pleaded; and(b) it was for the judge to determine whether this threshold was appropriate in these particular premises as they were situated. There was no evidence to support the view, and certainly no evidence to support a view that the situation was not hazardous in law, as to it being common to have this sort of object in these sort of premises.[17]So far as the compliance with the Building Regulations is concerned, Mr Walsh largely or entirely adopted some correspondence from the St Albans City and District Council (the appropriate local authority) in which they had said that, having considered the matter with some care, they had come to the conclusion that the premises as constructed were not in breach of the Building Regulations 1985. Those were the regulations in place at the time of construction. They were not the regulations in place at the time of the accident. However, leaving aside that point, all that the local authority was able to say was that, in its judgement, the threshold did not infringe the very generally stated requirements of the Building Regulations.[18]As my Lord, May LJ, pointed out in the course of argument, that was not a relevant and certainly not a conclusive issue in this case because the construction has to be assessed not merely under very generally stated Building Regulations, but under the Construction and Use Regulations (if any) specifically directed to the particular form of construction. The reason why that matter was never entered upon was again that it was never part of the pleaded case of the hotel that the building in fact complied with any regulations whatsoever. In technical terms, or indeed in terms of fairness, it was not appropriate for the court's attention to be drawn at all to the correspondence from the local authority. I therefore cannot see that the judge was wrong in excluding Mr Walsh's evidence, and he was certainly completely right in not being constrained by the fact that an order had been made for Mr Walsh to give evidence, granted that that order as put to the previous judge by the parties had been formulated on a misconceived basis.[19]Having dealt with Mr Walsh, I can now deal, I hope comparatively shortly, with points that Mr Norris very fairly said were all short points. First, he said that such an upstand was normal, or at least to be expected to found, and one could therefore reasonably expect a person passing through this door to keep their eyes about them and expect to find an upstand of this sort. In support of that, he criticised the judge's observation in paragraph 10 of his judgment, or rather his acceptance of the claimant's case as stated in paragraph 10 of his judgment, that one would not be surprised to find that one had to step up an outside step or sill to get into the building, but would be surprised to find such a sill on leaving. Mr Norris said that that was simply incoherent or inconsistent. I fear I do not agree.[20]It is one thing when one is entering a building to expect to have to step up a step which is perfectly obvious to you. That is quite different from expecting to find in the doorway itself, on the other side of that step when one is approaching it from the other side, an upstand such as we are concerned with in this case. To the extent that either the claimant's case or the judge's description of it elided the situation of the step and the situation of the sill when entering the hotel, then it may have been wrong so to do. But the important point is whether or not the sill is to be expected when one is going out. That was a question on which the judge had to use his judgement and commonsense, which indeed he did.[21]For my own part, I at least would say that, when one is leaving a hotel, one may well have other things on one's mind than looking at the arrangement of the floor, as indeed this lady had in this case as she was looking for one of her relations.[22]Second, and aligned to that point, Mr Norris said that the upstand was perfectly visible and painted white. That is true. Mrs Searson very frankly accepted that, indeed as the photographs clearly demonstrated. But that is not relevant unless she should have been looking where she was walking, and the judge said that it defeated him to understand why she should have been. I would agree with that.[23]Thirdly, previous experience showed that a million people had passed across this sill without being injured, and Mr Walsh's evidence included an account of his standing there for a morning, or part of it, watching people come in and out, when no one fell over. The latter part of the evidence, as I think Mr Norris accepted, was completely worthless. The fact that there had been no hazard on the particular occasion did not prove or disprove anything. The judge was perfectly content to receive that part of Mr Walsh's evidence. As he said, he did not need Mr Walsh to go into the witness box to say it to him. He simply did not act on it. But the fact that no one has yet been injured goes only a very modest way to establishing that the object is not hazardous. As my Lord, Sedley LJ, pointed out in the course of argument, we know nothing about how many people have actually tripped over this upstand. Many people may have done so and been able to right themselves, or if they fell over, did not fall over with the consequences that affected Mrs Searson. But this lady did fall over, and so far as that had an effect more serious than may have affected other people slipping, the defendant I fear has to take this plaintiff as he finds her.[24]Fourth, the point about the Building Regulations. It is not merely a technical objection that compliance with the Building Regulations was not pleaded. If it had been pleaded, a more extensive investigation may have been undertaken than was undertaken in this case. The opinion of the St Albans District Council was not evidence at all; and, in any event, it is trite law that conformity with the relevant regulations, be it Employment Regulations or Building Regulations, does not exclude common law negligence.[25]It might have been better if the judge had said a little more on this point, but he rightly pointed out in the course of debate that this was not a Building Regulations case, by which he rightly meant not only that the claimant did not rely on the Building Regulations, but also, at least on their pleaded case, the defendant did not do so either. I cannot accept that he was wrong to handle the regulations as he did.[26]Fifthly, Mr Norris says with, if I may respectfully say so, proper diffidence that the judge may have been influenced by the fact that no good reason had been demonstrated as to why the upstand was there in the first place. There was a good deal of speculation on that point in Mr Walsh's report, but he very properly said that he could not come to any conclusion on how and why the doors had been built as they were without seeing the architect's plans and work book. The issue was not in any event relevant because the defendant had not said, as in other cases it is sometimes said, that the construction was necessary, inevitable or only to be removed at great expense.[27]Taking all those points together, I fear I cannot accept that they add up to anything like a demonstration of error of law on the judge's part that should have caused him to come to a different view in this case. As I have said, it is a very short case on simple facts, well within the grasp of an experienced judge. The judge came to a conclusion on it which might not have been the conclusion of every judge, but one that he was well able to come to on the facts before him.[28]No authority was cited to us apart from, briefly, a case in this court: Palmer v Marks & Spencer Plc [2001] EWCA Civ 1528, a case of a lady who fell over and complained under the Workplace (Health, Safety and Welfare) Regulations 1992, the trial judge having found, and there having been no appeal against his finding, that the employers had not been negligent. Mr Norris only relied in very general terms on this case. He was right to treat it in that way. The facts were different. The upstand in that case was a mere 9mm, some one third of the height of our upstand, and the employee in question was well aware that it was there and had indeed passed over it many times in the course of her employment. The question was whether the floor was uneven to the extent that it exposed persons to risk by reason of their health and safety. This court held that it was not. It is a case purely on its own facts, which probably explains why it has never been reported, as far as we can see, in any of the eighty-odd series of law reports now current. I would simply draw attention to what was said by Schiemann LJ in paragraph 33 of his judgment, which he prefaced by the words "in law, context is everything". I would respectfully agree. The case certainly does not assist in determining whether it was open to Judge Collins to reach the conclusion that he did on the very different facts of this case.[29]I would dismiss this appeal.

LORD JUSTICE MAY: I agree that this appeal should be dismissed for the reasons which Buxton LJ has given. The point at which the claimant tripped and fell was at a principal guest entrance and exit to and from a much used hotel or conference and banqueting centre. To a person going out of the premises there was, as Buxton LJ has explained, an upstand of rather more than an inch, immediately followed by a step down of about 4 inches. The claimant tripped over the upstand. She did not notice it, saying that she did not expect to find a hazard such as this in a place such as this.

[31]I agree that the judge was correct to exclude so much of the opinion evidence of Mr Walsh as he did. Indeed, I fear that insufficient thought was given before the trial as to the real need (if any) for expert or opinion evidence in this case. There was no relevant technical case pleaded by the defendants as to the construction or purpose of the upstand, nor as to its necessity, if necessary it was.[32]On this, Mr Walsh, to my reading, really did no more than speculate that it was part of a detail of construction to keep out the weather. That may be so, but that fact would not necessarily make the result reasonably safe. In the absence of detailed reference to technical literature about weather proofing or the construction of aluminium framed doors, a broad reported opinion of the local authority that the construction was not in breach of the very general Building Regulations 1985 takes the issue which the judge had to decide virtually nowhere.[33]This was eminently a case for the judge to decide as a matter of broad general experience upon evidence which, in the absence of a technical case from the defendants, really needed to go no further than some good photographs and the relevant dimensions. He concluded, in effect, that the upstand and, I would add, the step down following it was, without a clear warning, a hazard to those approaching the door from inside the hotel.[34]In my judgement, he was entitled so to find and made no mistake of law in doing so. For these reasons and those given by my Lord, I would dismiss this appeal.

LORD JUSTICE SEDLEY: I agree with both judgments.

Cited in 1 later judgment