Clark v Bourne Leisure Ltd [2011] EWCA Civ 753

[2011] EWCA Civ 753Case No B3/2010/2376
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORWICH COUNTY COURT
DISTRICT JUDGE SPARROW
9LO00861
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/06/2011
Before
THE MASTER OF THE ROLLSLORD JUSTICE ELIASDAME JANET SMITH
Between
Brenda ClarkClaimantBourne Leisure LimitedDefendants
Mr Roderick Spinks (instructed by Norton Peskett Solicitors) for ClaimantMr Christopher Alldis (instructed by Hill Dickinson LLP) for DefendantsHearing Hearing date : 6 April 2011
Judgment

Dame Janet Smith:

[1]This is an appeal from the order of District Judge Sparrow made in the Norwich County Court on 27 September 2010. The judge held that the claimant, Mrs Brenda Clark, was entitled to recover damages from Bourne Leisure Limited, the occupiers of Seashore Holiday Park, Great Yarmouth, for personal injuries sustained at those premises on 19 September 2006. I granted permission for Bourne Leisure Limited to appeal against that decision.[2]Mrs Clark, the respondent to this appeal, is disabled and uses an electric wheelchair. On 19 September 2006, while on holiday at the appellant’s holiday park, she visited the Tavern Bar. For present purposes, it is not necessary to give a full description of the layout of the bar premises. Suffice it to say that the sitting and circulating areas were arranged on three different levels. This case was concerned with the means of connection between two of those levels. On one side of the room the two levels were connected by a ramp, about 10 metres long and 1.5 metres wide. On the other side, they were connected by two steps, situated several feet apart. At some stage during the evening, the respondent went up the ramp in her wheelchair. A while later, she wished to descend to the lower level. Instead of retracing her route down the ramp, she took the other route. The judge was of the view that she did so believing that she was about to descend a ramp similar to the one she had ridden up. In fact, she attempted to drive down the steps and, at the first step, which was of a depth of about 7 inches, her wheelchair tipped over and she fell out, sustaining quite nasty injuries.[3]In due course, the respondent sued for damages alleging that the premises did not comply with section 2 of the Occupier’s Liability Act 1957. She alleged that she had anticipated that both routes between the two levels would consist of a ramp. When she wished to descend, she had not appreciated that she was approaching steps. She claimed that the steps were a concealed hazard for wheelchair users because they were covered by a heavily patterned carpet. In fact, as can be seen from the photographs of the scene, the second step was carpeted at both levels, but the first step, at which the accident occurred, was not. The first step comprised the wooden floor of the upper level with an edge or ‘nose’ made of rubber and a silver coloured metal. About 7 inches below that, the floor was carpeted with a very ‘busy’ pattern. The second step down was several feet further on and was carpeted at both levels; it also had a rubber and metal edge.[4]The appellant, in its defence, admitted that the respondent had sustained injury when she drove her wheelchair down the steps instead of using the ramp. It contended that the steps were clearly visible and that the change in levels was highlighted by the contrasting flooring. The premises were reasonably safe for wheelchair users.[5]The trial took an unusual course in that there was no evidence from Mrs Clark herself. Nor indeed was Mr Spinks, her counsel, able to call any eyewitness to the accident. Mrs Clark had been accompanied that evening by her sister and brother-in-law but they had not seen what happened. Counsel called Mrs Clark’s niece, who had attended the scene the following day and had taken some photographs. In his closing submissions, Mr Christopher Alldis for Bourne Leisure submitted that the claimant had not proved how or why the accident happened; therefore her claim should fail. He said that it was quite possible that Mrs Clark had realised that she was approaching some steps but decided to continue in the mistaken belief that her wheelchair would be able safely to negotiate them. Her implied allegation in the particulars of claim that she had driven down the steps believing them to be a ramp was not evidence of her state of mind.[6]The judge rejected Mr Alldis’s submission and declared himself satisfied on the balance of probabilities that Mrs Clark had driven down the step under the mistaken impression that she was about to go down a ramp. He noted that the general circumstances were not disputed; it was only Mrs Clark’s perception of the situation which was in dispute. In accepting that Mrs Clark had believed there was a ramp, he relied mainly on the accident report form completed by an employee of Bourne Leisure on the day after the accident. The account recorded on that form says:
“Riding electric wheelchair in part of bar, to go round onto middle tier thinking there was a slope for wheelchair but realised too late that only steps, went over onto face and side.”
It is not clear who was the source of that account; it might have been Mrs Clark or it might not. The judge took the view that the employee receiving the account must have believed it to be true and he relied upon it. The judge was also aware that a similar account had been advanced in the pleadings, in party and party correspondence and also to a doctor taking an account for the purpose of a medico-legal report. He considered that the claimant had been consistent in her claim.[7]The judge then turned to what he described as the real issue in the case which was whether the premises were reasonably safe for the people who could be expected to use them, including wheelchair users. For reasons which I will examine in a moment, he held that they were not and that the occupier was liable. Before considering whether he was right about that, which is the main issue in this appeal, I will deal with Mr Alldis’s submission on this appeal that the judge had not been entitled to accept that Mrs Clark had believed that she was about to go down a ramp. She might have made a deliberate decision to go down the steps and her claim should have failed for want of proof.[8]It must be admitted that it is most unusual for a live claimant who is capable of giving evidence to choose not to do so. There was no evidence that Mrs Clark could not have given evidence as to her state of belief as she approached the steps. Mr Alldis is right that the assertion in the pleadings is not admissible evidence. But he conceded that the account in the accident report form was admissible hearsay. Bourne Leisure had not sought to dispute the reliability or accuracy of that account as it could have done. It seems to me therefore that the judge was entitled to rely on it. I agree that it provides only a slender basis for a finding of fact and I consider that the claimant was taking a real risk in deciding not to give evidence herself. However, I do not think it can be said that the judge was not entitled to make the finding he made.[9]I turn now to the judge’s holding that the premises were not reasonably safe for a wheelchair user such as Mrs Clark. It was common ground that the ramp provided a safe means of changing levels for wheelchair users. The only question was whether the steps on the other side of the room were sufficiently visible or apparent or obvious so that wheelchair users would realise what they were and would not attempt to descend them.[10]The judge described the layout much as I have done in paragraph 3 above. He noted that, at the second step (both levels of which were carpeted), it was quite difficult to see the difference in levels. The appellant does not quarrel with that observation but makes the point that Mrs Clark did not fall at the second step; she fell at the first, which was not carpeted on both levels. On the contrary, the two levels of the first step were of different construction – wood on the upper level and carpet on the lower level. The judge was plainly aware that, at the first step, there were two different materials but he said “The fact that there is a change from wood to carpet would not of itself indicate that there is change in level”. The judge then noted that Bourne Leisure’s witness (Mr Green, the manager of the complex) had said that the lighting was good. I note that no allegation was made about the lighting being inadequate.[11]The judge then considered the photographs and observed that, on photographs 1 and 2, (on page 85 which actually showed the second step) the change of level was “not apparent at all within the pattern of the carpet”. He then said that, on looking at photograph 4 on page 86 (which showed the first step taken from the upper level – that is as Mrs Clark would have seen it as she approached) he considered that the change in level was not apparent. He added that it was in relation to that photograph that Mr Green had conceded that it was difficult to tell that that there was a difference in level. In fact the judge was wrong about that last point; examination of the transcript shows that Mr Green made that admission when looking at a photograph of the second (fully carpeted) step. What is more he had added that the difference in level was easier to see ‘on the ground’ than appeared in the photograph.[12]The judge then noted that the point was being made on behalf of the claimant that there were no markings or warning signs drawing attention to the change in level, only the rubber and metal nosing strip. He considered the correspondence which had taken place between lawyers for the two sides before proceedings had begun. He said that he regarded that correspondence as significant in that it revealed that the occupier had in effect conceded that there should have been signage and hazard warning tape. Because Mr Alldis has submitted on this appeal that the judge was wrong to attach any significance to that correspondence and wrong also to think that it contained any concession by the occupier, I will summarise its effect.[13]The court bundle does not contain the original letter of claim but it is clear that the claimant’s solicitors wrote in the usual way and provided some details of the allegation. The initial reply from Bourne Leisure Ltd, (apparently from the legal department) dated 2 March 2007, rejected the claim on the ground that the bar area at the premises had a large ramp with ample room for a wheelchair to manoeuvre safely. There had been no previous accidents of a similar nature. It was accepted that there was a small drop from the ramp onto the carpeted area but there was signage warning guests of this and hazard warning tape. It was contended that these measures were more than adequate to warn guests of the change of level. It was clear from the correspondence that Bourne Leisure Ltd had not yet obtained a statement from their manager. A further letter was sent by Bourne Leisure Ltd dated 8 March 2007 in which it was asserted that the ramp was exceptionally wide and there was more than adequate room to manoeuvre a wheel chair without danger. It is clear from both of these letters that Bourne Leisure Ltd was at that stage under the impression that the accident had occurred while the claimant was on the ramp and not while trying to descend the steps. It is clear that the claimant’s solicitors realised that Bourne Leisure was under a misapprehension because, by letter dated 16 March, they asked what ramp was being referred to and made it plain that the accident had not happened at the ramp but on the other side of the room where the claimant had (mistakenly) expected there to be a ramp. In reply dated 28 March 2007, Bourne Leisure Ltd asserted that there was no reason for the claimant to assume that there would be a ramp on both sides of the room. It was ‘visibly obvious’ that there was not. Strangely, the assertion was repeated in that letter that there was signage and warning tape in place to warn guests of the change in level. In fact, there was not and never had been any signage or hazard warning tape at or near the steps although it appears that there was a sign indicating the way to the toilets.[14]The judge held that the premises were not safe for wheelchair users. He said:
“There could have been signs, there could have been hazard tape and the difference in level could have been designed in a better way. I am satisfied therefore that there is liability on the defendant company…”
The judge then went on to consider contributory negligence and assessed the claimant’s contribution at one third.[15]The main ground of this appeal is that the judge was wrong to hold that the premises were not safe. I observe in passing that the test he was to apply was not whether the premises were safe but whether they were reasonably safe. However, the judge had earlier enunciated the test correctly and it was not alleged on the appeal that the judge had made an error of law in that respect. I say no more about it. Mr Alldis’s complaint was that the judge had been wrongly influenced by two factors. First, he thought that Mr Green the manager had conceded that it was difficult to see the change in level at the first step whereas in fact he had made that concession in respect of the second (fully carpeted) step. Second, the judge thought that, by claiming that there were warning signs and hazard tape in use, Bourne Leisure Ltd had, in effect, conceded that such measures ought to have been taken. Mr Alldis submitted that no significance should have been attached to the pre-action correspondence as the parties had clearly been at cross-purposes. It may have been unwise for Bourne Leisure to say anything when they had not taken full instructions from the complex manager. The claim about signs and tape in the first letter was clearly intended to relate to the ramp and was irrelevant to the accident. The repeated allegation in the third letter dated 28 March was incomprehensible but could not be taken as a concession that signs or tape were needed at the steps to make them reasonably safe.[16]When assessing whether the steps were reasonably safe for wheelchair users, it was incumbent on the judge to make his own judgment about the matter. What other people thought – even what the defendant itself thought – could be relevant to the issue but not determinative. It is fair to say that the judge did express his own view of the safety of the steps at paragraph 10 of his judgment when he said that, on looking at the photograph of the first step, the change in level was not apparent. However, he immediately went on to observe (wrongly) that Mr Green the manager thought so too. It seems to me therefore that the judge was influenced in his own decision as to safety by his mistaken understanding of Mr Green’s opinion. In that respect, I would accept Mr Alldis’s submission.[17]I would also accept his submission as regards the party and party correspondence. I think that the judge was wrong to conclude that the claims about signage and tape amounted to a concession that such measures were necessary. I think Mr Alldis is right to say that the parties appear to have been at cross-purposes for much of the time. Also it appears that the person in the legal department of Bourne Leisure Ltd had not at any stage taken full written instructions from Mr Green the manager. She was no doubt unwise to write as she did but I do not think her words could be taken as a concession as to the need for warning signs or tape in relation to the steps. The judge regarded this supposed concession as ‘significant’. I would say that, even if it had been made, any such concession would have been of limited relevance to the issue of safety which the judge had to decide for himself.[18]In my judgment, in reaching his conclusion, the judge was wrongly influenced by these two factors and I do not think that his decision can stand. Both parties have indicated to the court that, in the event that we should set aside the judge’s conclusion on safety, they would wish this court to consider the matter for itself rather than to send the case back for retrial. I would be prepared to do so because it seems to me that the only evidence before the judge which was relevant to safety was the photographs which we also have.[19]On looking at the photographs and in particular at photograph 4 on page 86 of the bundle, which shows the view of the first step which the claimant would have had on her approach, I come to the conclusion that the difference in level was sufficiently apparent. It is necessary for me to add a few words of description of the scene to which the judge did not refer. The steps are quite wide; we have no measurements but they appear to be about 5 feet wide. The first step leads down into a small seating area, where on the right and to the side, there are chairs and a table for the use of guests. That area was on a level intermediate between what I have been calling the upper and lower levels. The second step is beyond that small area and leads down onto the lower level into another larger sitting area with more chairs and tables. So, the view from the position of approach to the steps is not simply one of a means of access to the lower level; it is a view of two seating areas. It is obvious that the small seating area on the intermediate level is horizontal. The chairs and tables are not on a slope. To my mind, no one looking at that scene could possibly think that he or she was approaching a sloping ramp. In my judgment, it was quite obvious and apparent that there was a difference in level between the wooden floor of the upper level and the small seating area on the intermediate level. The position of the step down (the first step) was clear from the change in surface and the rubber and metal ‘nose’. I accept that the presence of those features do not of themselves indicate a change of level but the general layout as I have described it makes the change in level obvious.[20]For those reasons, I would reach a conclusion different from the judge and would hold that the premises were reasonably safe for wheelchair users. The ramp was available and entirely safe for wheelchairs. The steps were not safe for wheelchairs but they were clearly visible and any wheelchair user taking reasonable care for his or her own safety would avoid using them. Accordingly, I would allow the appeal and dismiss the claimant’s claim. In view of this conclusion, there is no need for me to deal with Mr Alldis’s alternative submissions in relation to contributory negligence. Lord Justice Elias:[21]I agree.

Lord Neuberger MR:

[22]I also agree.