Collins-Williamson v Silverlink Train Services Ltd [2009] EWCA Civ 458

Case No B3/2008/2865[2009] EWCA Civ 458
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
(HIS HONOUR JUDGE REDDIHOUGH)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 25 th March 2009
Before
LORD JUSTICE PILLLORD JUSTICE MOORE-BICK
Between
COLLINS-WILLIAMSONApplicantSILVERLINK TRAIN SERVICES 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 W Norris QC and Mr D Sullivan (instructed by DWF) appeared for Applicant.Mr D Melville QC (instructed by Kester Cunningham John) appeared for Respondent.
Judgment
[1]This is an application for permission to appeal against a judgment of HHJ Reddihough, sitting as a judge of the High Court, delivered on 7 November 2008. The judge found in favour, on the question of liability, of Mr Paul Philip Collins-Williamson, who had claimed damages for personal injury arising out of an accident which occurred at Gunnersbury railway station, West London, at around 11.43pm on 11 June 2003. The claimant was seriously injured in the accident. He fell between the platform and the train, which moved off and caused him injury.[2]Many issues were ventilated. It was submitted that the guard on the train was negligent and, if that allegation failed, that the system in operation at Gunnersbury railway station was unsafe and that the applicants were responsible for that. The applicants, Silverlink Trains Limited, seek permission to appeal. It is a renewed application. It has been refused, on a consideration of the papers, by Smith LJ.[3]Mr Norris QC, who appears for the applicants, has prepared a very detailed skeleton argument supported by schedules. He submits that the judge’s finding that the guard was negligent and that his negligence was causative of the accident is not, on the evidence, sustainable. He submits that the system of work and the system of organisation of the movement of trains was not negligent.[4]The claimant, who was himself found one-half to blame for the accident, did not give evidence. There is clear evidence that he was under the influence of drink. There was evidence, which the judge accepted, that he had left a railway train which arrived at the station at 23.42.31. The platform was under the observation of CCTV cameras and timings as to when the train arrived and left and when the guard re-boarded it are available to the second. For present purposes it is accepted on behalf of the applicants that the claimant did dismount from the train. There was evidence that before he fell he had banged on the windows of the train and behaved in a somewhat bizarre fashion more generally.[5]Mr Melville QC has appeared on behalf of the claimant at this hearing and has addressed the court in considerable detail. He submits that the findings of the judge on all issues can be sustained and that the applicants do not have a real prospect of success in this court.[6]The judge summarised the evidence of the witnesses in a way in which Mr Melville states was entirely suitable for present purposes. There were inconsistencies between the witnesses and there were inconsistencies between the statements and oral evidence which two of the three witnesses gave. We have been referred in some detail to the written statement of Mr Gregory, who did not give oral evidence, and to the witness statements and oral evidence of two ladies who were on the platform, Mrs Wileman and Miss Steenkamp. The judge described the sequence of events. There was an issue as to whether the behaviour to which I have referred had occurred or at least started before the guard, correctly, came out on to the platform as observed by the cameras and moved to return to the train. That was at 42.51, and he boarded the train probably at 42.53. The train halted at 42.31; restarted at 43.07. The doors opened at 42.35 and closed between 42.45 and 42.47. The fall, the judge found, was between 42.57 and 43.00. The experts put it several seconds later, at 43.03 in their opinion. Of course the judge was not obliged to accept this timing. Thus the interval between the opening of the doors at 42.35 and the re-boarding by the guard, the turning to re-board, was one of 16 seconds. There was then, between that moment at .51 and the movement of the train, a period of 16 seconds when the platform would not have been in the observation of the guard.[7]I state these figures not in any sense in seeking to bind the court but so that I can explain briefly why in my judgment this is an appropriate case in which to grant permission to appeal.[8]The claimant’s case was that the behaviour must have started before 42.51. The claimant must have left the train by 42.45, because that was when the doors closed, and probably did so a few seconds earlier, so that he was off the train for in the region of ten seconds before the guard moved to re-board.

The judge made this finding at paragraph 54:

“On the balance or probabilities the claimant was behaving in this way over a distance nearing 14 metres, that being the distance between the door from which he alighted up to the rear end of the middle carriage, which I find was the point near to which he fell. In relation to this there was evidence contained in Mr Peterson’s report that blood stains were found on the front of the rear carriage.”

The judge, having considered the timings, went on to say, at paragraph 61:

“It must follow from the preceding findings that, albeit the claimant’s fall occurred after the guard boarded the train, there was a period of time when the guard was on the platform and the claimant was engaging in his drunken behaviour close to the train. In my judgment the guard should have been checking the platform carefully right up to the moment he finally boarded the train, especially bearing in mind the gaps there are by the train at that station. If he had been doing that he should or would have seen the claimant. He would have realised he was in a potentially dangerous position and he was apparently drunk.”
[10]Members of the court have questioned Mr Melville in some detail as to what evidence there was of the 14-metre walk. That appears to me to be a significant issue, because if the claimant had walked as far as that it makes easier the judge’s finding that his behaviour had commenced before the guard turned to re-board the train. Notwithstanding the submissions of Mr Melville there is in my judgment an arguable issue as to whether there was evidence to justify that finding. An analysis of the evidence of the three witnesses makes the finding in my view a difficult one, at least one which should be the subject of scrutiny in this court.[11]It is supported, submits Mr Melville, by where the blood was found: that is, at the front wheels of the rear coach, the claimant having alighted at the front doors of the middle coach; the distance between the two points being one of 14 metres. It does not follow that the claimant fell at the point where the blood was found. Following Mr Norris’s written submissions he may well have fallen at an earlier point. Mr Melville says:
“Why was he not struck by the rear wheels of the middle coach?”
That argument could equally apply to the absence of signs of impact on the rear wheels of the rear coach, the train having been driven out of the station. The analysis of the evidence of the witnesses appears to me to show a real issue as to whether a finding of the 14-metre walk was justified. There was a gap, we are told, of 17 inches further forward on the train into which the claimant could have fallen.[12]I have started with that point because the judge has attached importance to it. It appears to me that there is a real prospect that the finding would be held in this court not to be justified.[13]I make the more general point that the evidence which had the difficulties to which I have referred was not analysed by the judge. With respect, it is arguable that he has not made clear how his conclusion to which I have referred does arise from the evidence of the witnesses. I do not propose to consider that evidence in detail. This, of course, will be a matter for the constitution hearing the appeal, and comment from me is unnecessary and would probably be unhelpful at this stage. That being so, and if my Lord agrees, permission being granted on the first ground I would grant permission generally.[14]As to the system of work and train movement this appears to me to be an important issue as well as an arguable one. The judge found that there should have been an openable window in the guard’s compartment so that the guard could have observed the platform after he had entered his compartment. The train company should already, Mr Melville submits, have been adapting their procedures to accord with the finding of the judge. That appears to me to demonstrate the importance of this issue. I find that it is one which, on the evidence, is arguable and which in any event deserves the attention of this court.[15]For those reasons I would grant permission to appeal generally.[16]I agree. There is nothing I wish to add.

Order

Application granted