Tedstone v Bourne Leisure Ltd (t/a Thoresby Hall Hotel & Spa) [2008] EWCA Civ 654

Case No B3/2007/2568[2008] EWCA Civ 654
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM BIRMINGHAM COUNTY COURT
(MR RECORDER KHANGURE QC)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 7 th May 2008
Before
LORD JUSTICE MAY,LORD JUSTICE MOORE-BICKLORD JUSTICE RICHARDS
Between
TEDSTONEAppellantBOURNE LEISURE LTDRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr C Alldis (instructed by Messrs Hill Dickinson LLP) appeared for Appellant.Mr P Oakley (instructed by Messrs Geoffrey Lever) appeared for Respondent.
Judgment
[1]Mrs Carol Tedstone was injured on 23 March 2004 when she slipped on a pool of water in the vicinity of a Jacuzzi on an area of non-slip tiles at the swimming pool of the defendants’ hotel. I shall come in a moment to describe the position of the Jacuzzi and its nature in relation to the swimming pool itself.[2]On 18 October 2007 Mr Recorder Khangure QC found that the accident was caused by the defendants’ breach of section 2 of the Occupiers’ Liability Act 1957, essentially for permitting a potentially dangerous pool of water to be where it was. There had been a conflict of evidence between the claimant, supported by her friend and another guest at the hotel, Mrs Goodwin, and Mrs Drury, the hotel’s duty manager, who attended Mrs Tedstone after her fall, as to whether there was indeed a pool of water on the floor where she slipped. It had been Mrs Drury’s evidence that there was not. On the contrary, she said that she herself had sat with Mrs Tedstone on the floor for a considerable period of time after the accident, without her own clothes getting in any way wet. The Recorder found in favour of Mrs Tedstone on this entirely factual issue and the defendants have been refused permission to appeal on the four grounds of appeal which sought to challenge that finding.[3]The short ground of appeal upon which Toulson LJ did give them permission challenges the Recorder’s further finding that the presence of the pool of water on the floor constituted a breach of the common duty of care under the 1957 Act. The basis for saying that there was no breach was Mrs Goodwin’s evidence that the area of the accident was clear of water within five minutes before the accident. As to this the Recorder found as follows:
“34. In the absence of the documents that I have already referred to and bearing in mind that Mrs Goodwin told me that the area in which the accident occurred was clear within five minutes of the accident occurring, I would have reached the conclusion that perhaps it was not foreseeable and that perhaps there were not steps that the defendants could have taken to ensure that this sort of accident did not occur and it did ensure that visitors would be reasonably safe. But, in the light of the documents that I have referred to, in the light of the way that the Jacuzzi was ferociously bubbling up, and in the light of the fact that I have concluded that an excessive amount of water was present behind the Jacuzzi and that the defendant knew that there was a problem in this area, which is demonstrated by the documents themselves and by Mr Ward’s evidence, I come to the conclusion that it was foreseeable and that it is in breach of its common duty of care to ensure that visitors will be reasonably safe in using the premises in the manner in which those premises are to be used. Therefore, I do reach the conclusion that it is liable.”
[4]The documents to which the Recorder referred included an investigation report dated 20 November 2000 of a site visit on 14 November 2000. This may well have been in consequence of an accident on 12 November 2000. The investigation report stated that some areas round the pool did hold water and that this was to be remedied by Christmas. There was said to be an agreed solution to repair or improve the drainage. Mr Ward’s evidence was that there had been no remedial works following this. His evidence also was that there had been no slipping accident in the area where Mrs Tedstone fell. There were, however, records of some slipping which made reference to pooling of water. Mr Ward also said that at some stage mats had been placed around the pool to prevent slipping where water was pooling. It was not clear whether this pooling was also in the area of the Jacuzzi, although there is one documentary reference, to which I shall come, that suggests there had been mats at one stage in the area of the steps down from the Jacuzzi. The Recorder thought that the use of mats may have indicated that the problem was more extensive than was at first thought. The mats themselves had been removed at some stage because they were regarded as a tripping hazard. However, no remedial measures were taken to deal with the pooling of water. There was a further document which suggested that the pool was cleaned once a day, in contrast with a further document in Mrs Drury’s evidence that cleaning was performed every hour. The Recorder noted evidence that the Jacuzzi was bubbling furiously.[5]The single ground of appeal on which permission to appeal has been given is that the Recorder imposed too high a duty of care when the water had been down for no longer than five minutes and must have been caused by a purely transitory malfunction of the Jacuzzi. I am not aware that there was any evidence one way or the other to support temporary malfunctioning of the Jacuzzi. It is submitted that there was no sufficient evidence to displace the Recorder’s initial inclination to find that this was an unforeseen temporary hazard and to support his findings that the defendants knew that there was a problem in the area. It is suggested on behalf of the claimant that the defendants made no sufficient risk assessment in relation to slipping. Mr Oakley points to a report of a slipping accident on a mat in the same general area on 16 September 2001. It was then considered whether the mat should be removed and on that occasion it was decided not to do so.[6]Helpful photographs show that the Jacuzzi was a circular one positioned at one end of the swimming pool and somewhat away from it. It had drainage grilles around the very edge of the water and then a raised plinth with a guardrail round most of it and steps coming down towards the photographer in the photograph on page 38 of our bundle. That photograph also shows, in its capacity as an exhibit to further information supplied on behalf of the plaintiff, that the approximate place where the pool of water on which she slipped was was to the right-hand side of the plinth in which the Jacuzzi was and some distance away from the nearest part of the foot of the steps down from it. Examination of Mrs Goodwin’s cross-examination does not show that she said in literal terms that there was no water in this area when she passed some five minutes before Mrs Tedstone slipped. But the Recorder found that as a fact on the basis of her evidence and in my view it was a reasonable and reasonably clear inference from her evidence that this was so. She also gave evidence that the pool of water that Mrs Tedstone slipped upon was quite deep and she pointed to her own feet in this respect. Upon that evidence, therefore, this water was not a simple spillage from swimmers walking around the side of the Jacuzzi. It was therefore, again, a reasonable inference that this pool of water had quite recently arrived, after Mrs Goodwin had passed by the area, from the Jacuzzi itself overflowing for some reason and overflowing to an extent greater than could be dealt with by the drainage around its circumference.[7]It is to be recalled that Mr Ward’s evidence was that there had been no previous occasion when water had been found standing in the particular area where Mrs Tedstone slipped. The documents, looked at in slightly more detail, show, or in some instances do not show, various things:[8]The accident on 12 November 2000 is described as: “Lady slipped as she came out of spa pool, sustaining cut to the left side of head [and she was taken to hospital].[9]The investigation report of 20 November considers the spa pool, which is to be understood as referring to the Jacuzzi and the area around the pool itself separately, and of the spa pool, it was said, “mosaic-tiled plinth did not appear to hold excessive water or to be excessively slippery” and the rest of the entry under the heading of spa pool has no criticism of it. Of the area around the pool it is said that some areas “where marble slabs tile do hold water to be remedied before Christmas as part of builders’ snag list”. At this date the pool had only recently been opened and the builders were to come back to do snagging. Apparently in this respect they did not do so but the area in question was not the area where Mrs Tedstone slipped. There is then a handful of accident reports, to which it is not necessary to refer in detail, except to say that none of them refer to accidents occurring in the place where Mrs Tedstone fell. And there is then a report of the accident on 16 September 2001, where the injured person got out of the spa pool and turned left and slipped at the edge of the spa mat and fell onto the poolside. Mr Oakley submits that this was plainly in the area, at least it was in the general area, where Mrs Tedstone fell but it is I think clear that this must be a reference to a mat which had been placed in the area of the foot of the steps leading down from the Jacuzzi and that it was some significant distance away from the place where Mrs Tedstone’s fall occurred.[10]Those then were the documents and that was the evidence available to the defendants to show that what appears to have been a slippery area of water was nevertheless there without want of care on their part. We have been referred to a number of authorities, including the well-known case of Ward v Tesco [1976] 1 WLR at page 110. This was a case where someone had slipped on a floor at a Tesco’s store and, noting that Ormrod LJ dissented in this case, to my mind a helpful passage appears in the judgment of Megaw LJ who was with Lawton LJ in majority, where he said at the foot of page 815:
“It is for the plaintiff to show that there has occurred an event which was unusual and which in the absence of explanation is more consistent with fault on the part of the defendants than absence of fault.”
Pausing there, Mr Oakley says that the presence of water as described by Mrs Goodwin and upon which Mrs Tedstone fell does raise a case that an event occurred which was more consistent with fault on the part of the defendants than absence of fault because he says they should have had in place a proper system of inspection and cleaning to ensure that pools of water did not occur in the area in question. For my part I am prepared to proceed on the basis that the plaintiff in the present case does raise such a prima facie case, although I can see the possibility of argument to the effect that she does not. I proceed on the basis that she does. Megaw LJ then went on at page 816B:
“When the plaintiff has established that the defendants can still escape from liability they could escape from liability if they could show that the accident must have happened, or even on balance of probability would have been likely to have happened, even if there had been in existence a proper and adequate system in relation to the circumstances to provide for the safety of customers. But if the defendants wish to put forward such a case it is for them to show that on the balance of probability either by evidence or by inference from the evidence that is given or is not given this accident would have been at least equally likely to have happened despite a proper system designed to give reasonable protection to customers.”
It is notable in that passage that Megaw LJ is not suggesting that defendants have to show that they did have a proper and adequate system, only that if they did have a proper and adequate system it would nevertheless not have prevented the accident on the balance of probability.[11]In the present case the area where Mrs Tedstone fell was an area which had non-slip tiles. There will, of course, be water from time to time around a swimming pool and around a Jacuzzi, most often when people get out of the pool or the Jacuzzi and water drips off them. But of course in those circumstances the quantity of water will not be as great as that which Mrs Goodwin described. Generally speaking, non-slip tiles should be regarded as sufficient for dealing with water of an occasional nature sufficiently dealt with by drainage or removal. No criticism is made in the present proceedings of the nature of the tiles around this swimming pool and Jacuzzi and in this case, where no criticism is made of the tiles, it was a question of having a sufficient system to deal with excessive water in places where water was to be expected.[12]In my judgment the critical facts in the present case are as follows. First, the accident occurred in a place where water had not gathered before -- see the evidence of Mr Ward and my interpretation of the document of 16 September 2001 which albeit it described a fall did not describe it in the very place where Mrs Tedstone fell. Secondly, and importantly, water had been seen not to be there within five minutes before the accident. Thirdly, water to the volume described by Mrs Goodwin must have come from an unusual spillage from the Jacuzzi, either because its mechanism was particularly vigorous or possibly because one or more people were using it in a very splashy way. It must have arrived, on the basis of Mrs Goodwin’s evidence, in the minute or two before the accident. Fourth, in my judgment on those facts no reasonable system would, on the balance of probabilities, have dealt with this unusual occurrence in the very short time available. In this respect I note a passage in the judgment of Lawton LJ in Ward v Tesco Stores where, in upholding the decision of the judge, at page 814C Lawton LJ said that the judge was justified in taking that view because the probabilities were that the spillage had been on the floor long enough for it to have been cleaned up by a member of staff. On the facts of this case, and bearing in mind we are concerned with the swimming pool not the floor of a supermarket, it seems to me that the time period was sufficiently short for the court to reach the opposite conclusion. Accepting that in the present case the claimant raised an evidential case which required an answer on behalf of the defendants, I consider that the evidence on which the defendants are entitled to rely sufficiently shows that this unfortunate accident did not occur from want of due care on the part of the defendants and for these reasons I would allow this appeal.[13]I agree. In Ward v Tesco Stores Ltd [1976] 1 WLR 810, to which we were referred by Mr. Oakley, the claimant was injured when she slipped on some yogurt that had been spilt on the floor of a supermarket. In that case the majority of the court were satisfied that the facts established by the claimant were sufficient to show that the accident would not have happened had the defendants taken reasonable care to prevent it. In his judgment at page 813 Lawton LJ (with whom Megaw LJ agreed) noted that it followed from the primary facts proved that those in charge of the store knew that during the course of a working week there was a likelihood of spillages occurring from time to time and held that it followed that there had to be some reasonably effective system for getting rid of dangers they posed. He then pointed out that when the facts established by the claimant point to the conclusion that the defendant was at fault the burden of proof passes to the defendant, that burden being of an evidential, not a probative, nature. He put the matter in this way at page 814:
“The judge thought that prima facie this accident would not have happened had the defendant taken reasonable care. In my judgment he was justified in taking that view because the probabilities were that the spillage had been on the floor long enough for it to have been cleaned up by a member of the staff.”
[14]Megaw LJ described the burden on the claimant as follows in a passage at pages 815-816 which immediately precedes that cited by May LJ:
“It is for the plaintiff to show that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendants than the absence of fault;” (Emphasis added.)
[15]If the claimant can prove facts which support the inference that the defendant was at fault, an evidential burden, that is, a burden to call evidence which would tend to rebut that inference, passes to the defendant. In this case, however, the facts proved by the claimant were not in my view sufficient to support the inference that the defendant was at fault. There was no evidence that the defendant knew that a significant pool of water was likely to appear in the area in which the claimant fell, or indeed anywhere else in the general area, other than at the foot of the steps leading out of the Jacuzzi, and accordingly the evidence called by the claimant did not point to the conclusion that prima facie there was a breach of duty on the part of the defendant. That being so, no burden passed to the defendant to call evidence to rebut any such conclusion, whether by showing it had a suitable system in place for mopping up water or otherwise. The fact is that the claimant simply failed to establish a breach of duty and for those reasons, as well as those given by May LJ, I would allow the appeal.[16]I agree with the judgment of May LJ, proceeding as it does on the assumption that the claimant established a prima facie breach of duty. But in common with Moore-Bick LJ I am inclined to go further, taking the view that there was no evidence of a known problem of water pooling in the area of the accident and that the Recorder was wrong to find otherwise; and in the absence of any such known problem I do not think that the claimant did raise a prima facie case of breach of duty calling for an answer by the defendant. For the reasons given I too would allow the appeal.

Order

Appeal allowed