Alli v Luton & Dunstable NHS Trust [2005] EWCA Civ 551

Case No A2/2005/0254[2005] EWCA Civ 551
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE COWELL)
Venue Royal Courts of JusticeDate Wednesday, 27th April 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE AULD
LORD JUSTICE LATHAM
LORD JUSTICE JACOB
Between
JASMIN ALLIAppellant-v-
Between
LUTON & DUNSTABLE NHS TRUSTRespondent
(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 A SMITH (instructed by Douglas-Mann & Co) appeared for AppellantMR R STEWART QC & MR R LIDDLE (instructed by Weightmans) appeared for Respondents
J U D G M E N T

LORD JUSTICE LATHAM:

[1]On 5th November 2004 His Honour Judge Cowell, at the Central London County Court on a trial as to liability, found in favour of the appellant, who was a nurse who had fallen at work and injured herself. Having found for her, however, he, after argument, concluded that in the circumstances of the case he would make no order as to costs even though there had been no Part 36 offers by the respondents; indeed, there had been Part 36 offers (to which I will return) by the appellant which the judge's conclusion on liability meant had been offers which should have been accepted by the respondents. We are concerned today only with that order in relation to costs.[2]The appellant, in her grounds of appeal, has submitted that the judge was wrong as a matter of law to make the order that he did and that the order should have been one requiring the respondents to pay her costs on the standard basis until the first of the Part 36 offers that she had made, and thereafter on the indemnity basis, together with penalty interest as provided for in CPR Part 36.[3]The judge's conclusion as to costs was expressed in a short passage in the transcript, in the following terms:
"This is, in my judgment, a very unusual case because the factual basis of it undoubtedly changed. It was such as to lead the defendants to defend and undoubtedly would have influenced the way they dealt with the various offers or made offers, all of which were offers that, in the usual course of events, would result in the claimant recovering costs. But the change in the way in which the case was put was very much last minute, and although this will please neither party I think the appropriate order in the unusual circumstances of this case is no order as to costs."
[4]Mr Stewart QC, on behalf of the respondents, accepts that unless we are satisfied that there was indeed a change in the appellant's case which was of significance to the case which the respondents considered that they had to meet, that order cannot stand. He submits, however, that there was such a material change, and he reminds us that any appeal against a discretionary order, such as an order for costs, is one which can only succeed if we can properly say that the order was outside the generous ambit within which reasonable disagreement is possible, and was accordingly wrong. That was the test which this court considered to be the appropriate test in Tanfern v McDonald [2000] 1 WLR 1311.[5]It is therefore necessary, as Mr Stewart rightly submits, for us to look with some care at the way in which the case was presented by the appellant to the respondents to see whether or not ultimately, at the end of the day, there in truth was a change of such materiality as to justify the judge's order.[6]The appellant fell on 17th January 2001; and there was no dispute but that she fell at the bottom of the staircase which went between the fourth and the third floors of a building in the hospital which was the responsibility of the respondents. She had taken a patient to a ward on the fourth floor and it was as she was leaving that ward, together with a colleague, Miss Wall, that she had to descend the staircase on which she fell.[7]The usual accident form was completed by her on the day of the accident. What she said was:
"I was walking down the stairs from ward 12 when, because I was unable to see the stairs because the lights on the corridor were off, I mistook the last but one stair thinking it was the last one. I then fell and because I was in excruciating pain was unable to stand."
In answer to the question "What could have been done to avoid this accident?", she gave the answer: "The lights on the corridor should have been left on".[8]That particular description of what happened was in one sense ambiguous because the position was, this accident having taken place at about six o'clock in the evening, that there would be no natural light. There were lights on the fourth floor corridor leading from the ward out of which she had come to the stairs. There were lights on the staircase and there were lights on the third floor. It is unclear from her account in that statement whether she was saying that the lights were not on on the fourth floor corridor or the third floor corridor or both. What is of no doubt, because it was never in dispute, was that the lights were not on on the staircase, nor on the third floor corridor.[9]The claim, when it was ultimately made on the appellant's behalf in a protocol letter of 8th July 2002, was put in this way:
"After the patient was handed over to the staff on ward 12 the two nurses began to make their way back to the ward. By this time it was approximately 6.30 pm and dark. There were no lights on in the corridor that led from ward 12 to the staircase that the two nurses had to then pass down. The staircase also was not lit and the two nurses found that they had to walk down the staircase in almost complete darkness. Neither of the nurses knew where they would have been able in the dark to have located light switches."
It was accordingly plain from that letter that the allegation was that the lights on the fourth floor were not on, neither were the lights on the staircase, nor on the third floor.[10]The claim was immediately disputed by the respondents, who asserted that the lighting on the staircase was working normally and there had been no reports of any malfunction in the lights on the fourth floor corridor prior to the appellant's accident. That account was subsequently expanded in a letter of 22nd May 2003, in which the respondents stated that the staircase had lighting operated by manual switches located prominently at each floor level which would have been visible to the appellant even if the lights had not been switched on. It also asserted that the lighting would have been on on the fourth floor corridor and, implicit in that, was that there would accordingly have been ample light for the appellant at least to have seen the light switches at the top of the staircase even if the lighting from the corridor itself did not provide sufficient light, because of the layout of the building, for the staircase itself.[11]The reply from the appellant's solicitors was that as the lights on the fourth floor corridor were not on, it had not been possible for the appellant to see the light switches.[12]That essentially was how battle was joined at the time that the claim was ultimately made; and in the particulars of claim the appellant asserted in paragraph 5:
"The lights in the corridors were not on and the claimant proceeded along the corridor towards the stairs in almost complete darkness. The claimant followed Ms Wall down the stairs, holding the banister with her left hand. She thought that she had reached the landing area at the bottom of the flight of stairs but was mistaken and there were 2 more steps to go. As a result when she put out her right foot she misplaced it which caused her to lose her balance and to fall heavily forward on her right side twisting her right foot in the fall."
The pleading goes on to allege that the accident had been caused by the negligence or breach of statutory duty of the respondents, the breach alleged being a breach of Regulation 8.1 of the Workplace (Health, Safety and Welfare) Regulations 1992 in failing to ensure that there was suitable and sufficient lighting on the stairs. The facts were also pleaded as themselves justifying a finding of negligence.[13]The defence took issue with the particulars of claim, in effect asserting that the lights in the corridors were on, further asserting that the accident had occurred during visiting hours and that the corridor on the fourth floor was one which was lit by automatic lights which would have come on when the ambient light dropped below a given level, and that, in effect because there was no report or record of those lights failing, the lights must have been on at the time, which would not only have illuminated light switches for the staircase, but would also, because of the layout of the staircase, have provided sufficient light for the stairs themselves.[14]The defence went on to allege that the presence of the light switches for the staircase was sufficient to meet the obligations of the respondent under the regulations and that the failure of the appellant to use those light switches amounted to contributory negligence.[15]There was a request for further information in relation to the defence. That did not take the issues any further.[16]By the time the matter came to trial the appellant's case essentially remained the same. In the case summary provided for the judge, counsel for the appellant said as follows:
"The Claimant and her witness, Michelle Wall, allege that there was no lighting on in the corridor outside Ward 12 and no lighting on the staircase. The Claimant was following Michelle down the stairs in almost complete darkness. She thought she had come to the bottom of the stairs onto the landing but in fact misjudged this and there were two stairs left and as she put her right foot out she fell over onto her right ankle causing the injuries complained of."
[17]The case summary went on to define the main issues as follows:
"9. Were the lights on (a) in the corridor outside Ward 12 and (b) on the staircase. 10. If the answer is no, was there any referred lighting from the ward or other staircases. 11. Whose responsibility was it to ensure that the lighting was switched on. 12. If the lights were switched off, has the Defendant been negligent and/or in breach of their duty to provide 'suitable and sufficient lighting' - Reg.8 The Workplace (Health, Safety and Welfare) Regulations 1992. 13. Were the light switches clearly visible to the Claimant."
[18]That was the state of the material which was available to the parties and to the court at the time that the judge heard the case on 5th November 2004.[19]The respondents' submission to us has been that accordingly the respondents were entitled to assume that the appellant's case would be as pleaded and as indicated in the correspondence, so that the case they had to meet was to the effect that there was no light whatsoever on the corridor leading from ward 12, no light on the staircase and no light on the third floor corridor, and that that was the reason why the light switches, which were undoubtedly present at the top of the stairs, were not seen either by the appellant or Miss Wall nor were switched on by the appellant or Miss Wall.[20]That, Mr Stewart submits, was a case which lacked credibility; and the respondents were accordingly entitled to approach the case on the basis that that account was likely to be dismissed, its case at all times being that there was lighting on the corridor on the fourth floor and that there were light switches for the staircase. They would be able to establish, firstly, that there was no negligence and, secondly, that the provision of the switches would be a sufficient discharge of their obligations under the regulations.[21]The change to the appellant's case upon which the respondents rely is said to have come at the time that the appellant first gave evidence to the judge. Her statement, which was to the same effect as the pleadings, was taken as her evidence-in-chief. However, when she was cross-examined about the lighting on the corridor, she gave the following answers: Q. It is the defendant's case that there was a light on in the corridor, but your evidence is that there was not a light on in the corridor but there was still sufficient light for you to see; have I summarised that properly? A. On that night. Q. Yes, on that night. A. Yes. That is what I said. Q. As you left Ward 12, because you were then going back down the stairs, there was sufficient light for you to find the stairwell, was there not? A. Yes, because of the corridor, you know, the light from the ward to the corridor. Q. Yes. So we have looked at the photograph where the stairwell is, and we can see - you said it was not far from the door of Ward 12 to the stairwell, and we can see from the photograph it is not far, is it? A. No. Q. Can I just turn you back to photograph 3.8. Mrs Alli, did you or did you not look for a light switch before you went down the stairs? A. No, because there was a shade of light going down the stairs. It was only as we got to where I fell it became dark. It was getting progressively darker.[22]The question of the darkness on the stairs was taken up again by counsel for the respondent at page 71, where he directed the appellant's attention to a part of her statement in which she said:
"We were walking along in almost complete darkness"
. He asked as follows: Q. As I read that, Mrs Alli, I understood you to be saying that as you left Ward 12, because you were describing leaving Ward 12, you were walking in complete darkness? A. No, I meant the stairs I fell on. I meant when I fell. Q. Because what you say at para 11 is you were not familiar with this part of the hospital, and 'neither of us', referring to you and Miss Michelle Ward, 'would have known where to have found light switches'. I read into that, Mrs Alli, that at the time when you were leaving Ward 12 you did not know where to find light switches, which assumes that you would have been looking to turn them on? A. No, because there were lights we were not looking to turn lights on. We did not think it was going to be so dark down there.[23]Then moving on to page 76, Mr Liddle, on behalf of the respondent, sought then to sum up the issues as follows: Q. As I understand your evidence, Mrs Alli, it now does not matter that the lights in the corridor were not on, even though it is our case that they probably were on, because you could see where you were going, and the real cause of your accident was, was it not, Mrs Alli, that you simply did not turn the lights on? You did not use the switch? A. I did not feel I had to at the time.[24]Miss Michelle Wall, in her evidence, also retreated from the evidence that she had given in her statement to the effect that the corridor was in complete darkness and equally asserted that the true position was that, although there was light on the fourth floor corridor sufficient for them to see their way to the staircase, as they went down the stairs the light got steadily worse so that it was dark by the time they got to the third floor, where, as I have said, there was no dispute but that the light was not on and therefore not providing any illumination at that point.[25]That, therefore, was the state of the evidence when the judge came to consider the matter in his judgment. He concluded, essentially, that that case was a very different case from the case which the respondent originally had to meet. However, there was no application for the matter to be adjourned on the basis that the pleadings needed to be amended so he proceeded to give judgment on the basis of that evidence.[26]The judge concluded that the appellant was correct in asserting that the corridor on the fourth floor was at best dimly lit. He found that the accident occurred, as the appellant had asserted, when she got to the bottom of the staircase between the two floors, that that staircase had only dim lighting at the top but that it got darker and darker as the appellant and Miss Wall progressed down the stairs. He concluded that, the light on the third floor not being on, it was dark and that accordingly the accident had occurred as the appellant had asserted, namely at the bottom of the stairs in the darkness, but that she had in fact had sufficient light as she went to the top of the stairs to see her way down the beginning of the staircase and indeed to see the light switch. He accordingly concluded that she was wrong in her evidence that it was impossible to see a light switch; he was satisfied that there was sufficient light to do that. Nonetheless, he concluded that that was not a sufficient discharge of the respondents' obligations under the regulations, the fact that there was no light on the staircase was a breach in all the circumstances and he accordingly found for the appellant. He rejected the respondents' argument that the appellant had been guilty of contributory negligence because, as he put it, it was only as they went down the staircase that the appellant and Miss Wall would have appreciated or could have appreciated that there might have been darkness sufficient to cause problems as they approached the bottom, and that it was not negligent on their part, busy nurses as they were, hurrying back to their duties, to go all the way up the stairs again to switch the light on. In those circumstances he found that the respondents were wholly responsible for the accident.[27]It was in the light of those findings that the judge came to the conclusion that he did as to costs. The basis can only have been that in some way or another the fact the appellant's account had been misleading, in that she had until trial indicated that her case was that it was pitch black on the fourth floor corridor, and had accordingly so misled the respondents as to have affected their approach to the question of settling or otherwise disposing of the action.[28]I find the judge's conclusions surprising. The issue always was, and always had been, whether or not the appellant's fall at the bottom of the stairs was one which had resulted in a breach of the obligations either at common law or under the regulations. That remained her case throughout. The judge found for her on that issue, which was the critical issue, and found that she fell because it was dark at that point, which is what she had always asserted. The question of what the lighting was at the top of the stairs was ancillary to that issue, and indeed in effect went to the respondents' case, that is to their argument that there was no breach of the regulation because the switches were clear and visible and that of itself sufficiently discharged their duty and established contributory negligence.[29]In one sense, the judge's conclusions therefore were in the respondents' favour because the judge did conclude that the lighting was sufficient for the light switches to have been seen, but in his judgment, and there is no appeal against it, that neither discharged the respondents' obligations under the regulations nor justified a conclusion that the appellant had been contributorily negligent as the respondents had sought to argue.[30]It follows that the judge's conclusions as far as the appellant's case were concerned were not affected in any way by the change, if that is the right way of describing it, in the appellant's case. The change however enabled the respondents to use her evidence to support its two defences, if I can put it that way; but the judge concluded that those defences had no merit.[31]The respondents at all times knew what their defence was. The only difference between the position at the end of the trial and the assessment they were able to make at any stage up to the trial was that the judge did not come to a clear conclusion as to whether or not the lighting on the corridor was or was not on, he simply concluded that it was dim. It follows, in my judgment, that the change in the appellant's account in no way justified the conclusion that in some way or another the conduct of the appellant could justify departing from the normal rule as to costs as set out in Rule 44.3 of the CPR. The respondents simply misjudged the strength of their own case.[32]I say nothing about the extent to which it would in other cases be in any way appropriate for the court to engage in speculation as to what might or might not have been the attitude of a party to a judge's conclusion on the facts which differed from the case which was being presented by its opponent. That is common place in litigation; and it can only be in the most extraordinary circumstances that that of itself would justify the conclusion that there has been conduct which should affect the normal incidence of costs after a trial.[33]In those circumstances, I would allow the appeal, and it seems to me that there is no justification in this case for concluding that it would be unjust for the normal consequences of offers made under Part 36 to follow.[34]I referred early in this judgment to those offers. The first offer was made before the issue of the claim by letter of 11th August 2003, when the appellant's solicitors formally offered a split of liability of 80 per cent to the respondent and 20 per cent contributory negligence on the part of the appellant. It is that Part 36 offer which is the one which founds the application for the order in the notice of appeal, which is that the normal consequences, namely indemnity costs and enhanced interest, should flow from 3rd September 2003. I would order accordingly.

LORD JUSTICE JACOB: I agree.

LORD JUSTICE AULD: For the reasons given by my Lord, Latham LJ, I too agree that the appeal should be allowed and the court should substitute the order that he has indicated for that of the judge below as to costs.

Order:

[1]Appeal allowed.[2]The respondent to pay the appellant's costs of the appeal on the standard basis, to be assessed if not agreed, with liberty to apply on the issue of entitlement to indemnity costs if so advised.[3]The respondent to pay the appellant's costs below on the indemnity basis with enhanced interested from 03/09/2004.