AB v Pro-Nation Ltd [2016] EWHC 1022 (QB)

[2016] EWHC 1022 (QB)

CLAIM NO. A90MA184

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

Venue MANCHESTER DISTRICT REGISTRY

Date 28 th April 2016

Before

His Honour Judge Pearce

Between

ABClaimant

PRO-NATION LIMITEDDefendant

Mr Marc Willems QC (instructed by Potter Rees Dolan Solicitors) for Claimant

Mr Christopher Kennedy QC for Defendant

Judgment

[1]This is a claim for damages for personal injuries and consequential losses sustained as a result of an accident on 11 June 2011. The matter was listed for trial on the issue of liability before me sitting at Liverpool on 8 February to 11 February 2016. At the conclusion of the evidence I heard submissions from counsel for the Claimant and for the Defendant and reserved judgment.

[2]The Claimant is 58 years old, having been born on 7 January 1958. On the day of the accident, he was with a group of former work colleagues visiting the Pulse Bar on Dantzic Street, Manchester. They had visited other licensed premises earlier in the day and had each consumed a quantity of alcohol. The group was splitting up with people going their separate ways. AB and Mr Craig Boyes were the last two remaining. As Mr Boyes and the Claimant left the Pulse Bar, Mr Boyes went ahead. Mr Boyes successfully navigated the staircase which leads down from the bar to street level and went out on the street. AB followed him down the staircase, lost his balance and fell.

[3]AB suffered a fracture to the base of the skull. The Particulars of Claim describe a brain injury with intra-cerebral haematoma, subarachnoid haemorrhage and a suggestion of diffuse axonal injury. In consequence, he is unable to manage his own affairs and brings this claim through a litigation friend. He cannot remember the accident.

[4]There were no direct witnesses to AB’s fall, but CCTV footage shows him descending the staircase and losing his balance. The footage is not easy to watch, being of relatively low quality, not angled in the optimal orientation for viewing the accident and having a point in each second when the footage is blank. An attempt has been made to produce better quality footage. Whilst that footage is easier to watch, it unfortunately finishes earlier than the unedited footage, missing out the later part of that which is visible on the unedited footage.

The Claimant’s case

[5]The Claimant’s case is that the Defendant was in breach of the common duty of care owed to the Claimant pursuant to section 2 of the Occupier’s Liability Act 1957 by virtue of his being the Defendant’s visitor. The Claimant contends that the premises were not reasonably safe for visitors by reason of the lack of any or any adequate handrails to the staircase, the presence of curtains at the head of the staircase, the width of tread to the staircase steps and/or the layout of the staircase. The Claimant contends that, but for this breach of the common duty of care, the accident would not have occurred.

The Defendant’s case

[6]The Defendant denies any breach of the common duty of care. The Defendant contends that the staircase was, in all respects criticised by the Claimant, reasonably safe for users. In any event, the Defendant contends that the features of the staircase that are criticised were not causative of the accident. The Defendant contends that the accident was caused or contributed to by the Claimant’s own negligence in failing to take reasonable care whilst descending the staircase and in drinking so much that he could not safely use the staircase.

The circumstances of the accident

[7]It is important to understand a little more of the accident location. The Pulse Bar is situated in the Victoria Buildings on Dantzic Street, Manchester. The outside of the building can be seen in the photographs at page 109 of the bundle. The building is a typical 19th century Manchester warehouse. Entry at ground level through the front door on the street takes one to the position illustrated in photograph 4 from page 110 of the bundle - the photograph is taken from inside the premises looking towards the front door, which is covered by a curtain. Coming through the front door, one is on a landing where one could either turn left to go downstairs (to the right on photograph 4, page 110) or carry on straight ahead to go upstairs (i.e. towards the camera on photograph 4).

[8]The entrance can be seen in the architects’ drawing at page 99 in the bundle. On the upper right of that drawing, there is a plan called "Stair Location Plan.” The entrance from Dantzic Street is slightly to the right of the middle of the bottom of that plan. One can see stairs going up straight in front of the door from the street and the stairs going down to the left from the entrance.

[9]The Claimant went to the bar which was up the stairs. At the head of the stairs, there is a doorway which is covered by a curtain. That can be seen in photograph 3, page 110. Accordingly, in order to leave the bar (as the Claimant was doing at the time of this accident), he had to pass through the curtain, then descend the stairs.

The handrail

[10]It is common ground between the parties that at the time of the accident there was no handrail to the left side (when descending) of the upper or lower legs of the staircase. The left boundary of the staircase is formed by walls in each case. This can clearly be seen from the photographs on page 175 (the upper leg) and page 176 (the lower leg). As to the right side (again whilst descending) of the staircase, the boundary of the staircase is formed by low walls (it was suggested at one point that these were probably stud walls and that seems likely) topped with wood which is slightly wider than the wall below.

[11]The arrangement of wall and handrails can be seen, in the case of the upper leg, in the photograph on page 171. There is clearer detail in a photograph of the lower leg at page 173. The wood on top of the wall to the right side (when descending) of the lower leg of the stairs was measured by Mr Glenn, the expert instructed on behalf of the Claimant, to be 138mm wide – he did not measure its depth. The distance between the wall to the left hand side and the wall to the right in the lower leg of the staircase was measured by Mr Glenn to be between 1227 mm and 1200mm. Mr Glenn did not take corresponding measurements of the upper left of the staircase because he understood the fall to have been on the lower leg. It was only on sight of the CCTV footage, obtained after Mr Glenn had reported, that the significance of the design and layout of the upper leg of the staircase was considered relevant. From looking at the photographs, there seems no reason to think that the layout is materially different between the two legs of the staircase and it was not suggested to me at any point during the evidence that this was the case.

[12]The Claimant contends that this arrangement does not constitute a handrail within the meaning of the relevant regulations, standards and literature at all. The Defendant, to the contrary, contends that this piece of wood is a handrail and that it renders the staircase reasonably safe. The Defendant notes the definition of a handrail in the British Standard 5395-1:2010 as a “horizontal, inclined or vertical member, normally grasped by hand for guidance or support" (internal page 20). Whilst Mr Glenn did not accept that this piece of wood fulfilled that function, in order to avoid semantic debate, I shall use the word “handrail” to describe that which is visible on the photographs at pages 171 and 173, whilst of course determining the question of its adequacy to fulfil the functions of a handrail by considering the evidence in this case.

[13]For the purpose of demonstrating the difference between the actual rails present in the Pulse Bar and a round handrail, I was provided with two pieces of wood. One was a wooden rod, circular in cross-section, with a diameter of 35mm. The other was a flat piece of wood, measuring 138 mm x 19 mm, the edges being chamfered.

[14]I indicated earlier that the Pulse Bar is situated in a 19th century building. However, this staircase is much more recent. The architects’ drawing, referred to above, is dated September 2010. The Claimant called evidence from Mr Andrew Unsworth, a Building Control Surveyor employed by Manchester City Council (the relevant authority for building control purposes) as to the circumstances of this staircase being constructed and of communications between those acting for the Defendant and the Council during the period October 2010 to February 2011.

[15]Mr Unsworth annexed to his statement the architectural drawing produced by O’Connell East architects, at page 99 of the bundle. The drawing is titled “entrance/stair drawing” and includes the “stair location plan” referred to above. At detail 4, a proposed banister is depicted, showing that what was intended was a hardwood handrail measuring 100mm x 40mm mounted on a piece of metal which was 75mm wide, itself supported on uprights, above louvered grating. The drawing shows a 90mm gap between the top of the grating and the bottom of the handrail.

[16]In October 2010, Mr Stephen Haslehurst of O’Connell East contacted Mr Unsworth to ask whether the council would approve timber staircases such has had been used “last year at Victoria's.” In oral evidence, Mr Unsworth confirmed that he took “Victoria’s” to be a reference to Victoria’s gentleman’s club, at the Victoria Buildings on Dantzic Street, other premises operated by the same company as the Pulse Bar. I was shown photographs annexed to a statement from a process server, Mr Tony Dalton. Those photographs and video footage show the inside of the Victoria’s gentleman’s club. The photographs are difficult to make out, but the video footage is clearer and one can see a staircase with handrails that are cylindrical in profile mounted on brackets on both the wall and the void side of a staircase. Mr Unsworth confirmed that he understood the letter from Mr Haslehurst to refer to this type of arrangement. He agreed that this staircase and specifically the handrail to that on the architects’ drawing was an appropriate alternative design.

[17]In the event, Mr Unsworth inspected the Pulse Bar in February 2011. In a letter dated 9 February 2011, he noted various aspects of the works at the bar that required attention before the application for Building Regulations approval in respect of the building could be resolved. The letter appears at page 106 in the bundle. Item 4 states “Handrails to internal stairs to be installed.” Mr Unsworth said in evidence that this was a reference to what he saw as the absence of handrail to either side of the staircase where the accident occurred. He did not consider that the construction shown for example on page 173 amounted to a handrail that was compliant with the Building Regulations.

[18]It is notable that, whilst the Defence originally pleaded that this staircase and in particular the balustrade were historic or longstanding features of the building that were not altered when the building was refurbished (a reference to events in 2010/2011), this allegation was removed from the amended Defence – see paragraphs 3.5 and 3.6 on page 54 of the bundle.

[19]Given the drawing dated September 2010 and the emails in October 2010, I am satisfied that the staircase was constructed between October 2010 and February 2011, when Mr Unsworth inspected it.

The staircase treads

[20]Mr Glenn measured the treads to the lower leg of the staircase. He indicated that the length of each tread from front to back was between 278 mm and 282 mm, save for the bottom tread which measured 275 mm. Each tread had an over hang on it, reducing the going to between 255 mm millimetres and 257 mm. Each rise was measured at 180 mm. He did not measure the upper staircase, not realising its significance at the time of his visit. In oral evidence, he said of the upper and lower legs of the staircase that “on casual observation, the dimensions were comparable.”

The evidence relating to the day of the accident

[21]I heard from the following witnesses who were with AB in the time leading up to the accident: Mr Craig Boyes; Mr Kenneth MacDonald; Mr Declan Burns; Mr Malcolm Talmage; and Mr Kevin Saxon.

[22]Mr Boyes describe how the Claimant, he and another 5 people (those referred to in the previous paragraph and Mr Terry Corless) would, around three times a year, meet up on a Saturday in Manchester city centre. Typically, people would start to arrive at around 4:30 pm and the group would begin to split up at around 8:30 p.m. They would buy drinks in rounds. He said that, on the day of the accident, he and AB had the same amount to drink in the same premises, over the course of the afternoon/evening as follows: at Lloyds bar from 4.45pm – 5.45pm where they had 2 drinks; at the Mitre from 5.45pm to 7.45pm, where they had two drinks; then at Waxy O’Connor’s from 7.45pm to 8.30pm where they had one drink; and finally at the Pulse Bar from 8.30pm to 9.30pm where they had one drink. He described himself as “certain” about the amount that they had had to drink, that is to say a total of six drinks, all pints of lager.

[23]In his oral evidence, Mr McDonald indicated that he did not significantly disagree with Mr Boyes’ account of the evening. He clarified the reference to Sinclair’s at paragraph 8 of his witness statement, indicating that Sinclair’s is a public house next to the Mitre and that they were standing between the two premises. It did not indicate that they had drunk in both venues.

[24]Mr Burns stood by the estimate in his witness statement that he had drunk about six pints of ordinary strength lager and that, since they were buying drinks in rounds, others had probably had a similar number of drinks.

[25]Mr Talmage stated in his witness statement that he had had seven drinks, one pint of lager in the Lloyds, two in the Mitre, two in Waxy O’Connor’s and two bottles of lager in the Pulse Bar. In his oral evidence, he stated that it was not necessarily the case that each of them would have a drink in each round and that therefore it was possible that he had drunk more than others.

[26]Mr Saxon said that he had arrived earlier than the others and that he had possibly drunk more in consequence. He corroborated the evidence that drinks were generally bought in rounds, though again confirmed that not everyone necessarily had a drink in each round.

[27]Each of these five witnesses describes a scene of a group of mature gentleman drinking in a relaxed manner. None of them noted AB to be unsteady on his feet or in any way more severely affected by the alcohol than the others in the group.

[28]The Defendant served a witness statement from Mr Richard Hirst, who was working in the Pulse Bar on the day of the accident. He was not called to give evidence, but the Claimant put the statement in as hearsay evidence pursuant to CPR 32.5(5). At paragraph 6 of his statement, Mr Hirst states, “I was serving in the upstairs bar. (The Claimant) had been in the bar for about an hour and I didn’t notice any problems with his demeanour. He had been served about 15 minutes before he attempted to walk down the stairs and he didn’t seem too drunk at that point.”

[29]Mr Kennedy QC for the Defendant made the point that, in so far as Mr Hirst’s statement was put in evidence by the Claimant, the whole of the statement had to be considered. That is potentially significant because, at paragraph 7 of his statement, Mr Hirst describes reviewing the CCTV footage, stating that “The Claimant looked really drunk in the footage.” However, I am as well placed as Mr Hirst to judge what can be seen on the footage and I take no regard of the opinion of lay witnesses (be it Mr Hirst or any of the witnesses called by the Claimant) in assessing that evidence.

[30]In considering the evidence of those who were with the Claimant on the day of the accident, the Defendant invites me to have regard to the comments of Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd

[2013] EWHC 3560

. In a trial that took place in 2013, Leggatt J was considering events that took place in July 2005 to July 2006. His assessment of the evidence was very dependent upon the recollection of witnesses.In dealing with the reliability of memory,

the judge stated:

“16…Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.”

He later went on:

“19. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence to one side of the dispute. A desire to assist, or at least not prejudice, the party who called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces. 20. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does or does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to record. The statement may go through several iterations before it is finalised. Then, usually, months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.”

[31]I accept the Defendant’s contention that there are forces at play here which may affect the reliability of the evidence given by witnesses for the Claimant. The five witnesses, identified above, who were drinking with the Claimant on the day of the accident are his friends and may be expected to have ties of loyalty to him. Given the manner in which the Defendant puts its case on issues both of primary liability and of contributory negligence, the Claimant’s prospects of success may be affected by his level of drinking. It would therefore not be surprising if the witnesses tended to underplay the amount that they (and therefore by inference the Claimant) had drunk on this evening.

[32]Further, the witness statements upon which reliance is placed were prepared some time after the accident. Even though each witness gave evidence in a seemingly straightforward manner and I am conscious that I should not be misled into thinking that evidence given clearly and confidently is necessarily accurate.

[33]In cross-examining the witnesses and in his submissions to me, Mr Kennedy QC for the Defendant drew my attention to inconsistencies in the evidence. He said that these inconsistencies, coupled with the probability that witnesses called for the Claimant would be liable to understate how much they had had to drink, should lead me to the conclusion that they and therefore the Claimant had had more than 6 to 7 drinks on that evening. Specifically, the Defendant makes the point that the Claimant and Mr Boyes were the last to leave and therefore may have drunk more than the rest of the group, though, having drunk a fair quantity of liquid earlier in the evening that would not necessarily lead to further drinking.

[34]In my judgment, the evidence given by the witnesses as to the amount that they had had to drink had a ring of truth about it. They were a group of seven friends. They were buying drinks in rounds and therefore the total of seven drinks in the evening would be understandable, though not everyone would necessarily have a drink in every round.

[35]Mr Boyes was clear in his evidence that he and the Claimant had drunk the same amount, namely six pints of ordinary strength lager. I found him to be a careful witness, willing to concede that he might be wrong on issues. Further, the evidence of other witnesses and the general practice of the group in buying rounds might tend suggest the total was seven pints rather than six.

[36]To my mind the most powerful evidence on this issue is that recorded in the police officer’s notebook at page 478 in the bundle. He recorded a “friend” of the Claimant as saying that AB had had “6 or 7 drinks, beer.” Mr Boyes says that the “friend” must have been him - the others had left by the time the police officer arrived and in any event Mr Boyes said that he recalled speaking to a police officer. It seems to me that, at the time of that Mr Boyes spoke to the officer, he had no reason to understate the amount the Claimant had had to drink. This was not a case of drink-driving or other disreputable behaviour by somebody who had been drinking. Rather, his friend had been seriously injured. Mr Boyes had every reason to be accurate in what he told the officer as to the Claimant’s drinking and given the correlation between the range of 6 to 7 drinks that he describes to the officer and the practice of the group, as referred to above, the evidence is powerful in support of that range is being accurate.

[37]My attention is drawn to a document prepared by a paramedic from the ambulance service which appears at page 481 in the bundle. It is then recorded, “Consumed large amount of alcohol according to friend.” Again Mr Boyes said that he was the only friend present and that he spoke to a paramedic and therefore again it seems highly likely that this note refers to what he had to say. Mr Boyce said that he would not have described what AB had drunk as "a large amount” and he thought he would have said that he had drunk 6 pints. He did concede that he might have described the Claimant has having drunk “quite a lot.”

[38]Of course, how one describes the amount a person has had to drink, other than in simple terms of quantity, is a matter of judgment. One person’s “6 to 7 pints” may be another person’s “large amount.” Nothing in the paramedics note makes me doubt the accuracy of the clear contemporaneous note from the police officer.

[39]Having considered how much the Claimant had had to drink at the time of his accident I turn to consider the effects of the alcohol upon him. The consumption of six or seven pints of ordinary strength lager would almost inevitably render a person’s alcohol level to be above that permitted to drive. This reflects the fact that, more generally, that level of alcohol consumption will affect a person’s judgment. As to how it would affect a person’s use of the staircase, it seems to me that the response is likely to vary greatly from person to person.

[40]All the witnesses called on behalf of the Claimant described his condition prior to the accident being essentially normal. Each denies that he was in general terms behaving in a drunken fashion or specifically was unsteady on his feet. I again have in mind the warning words of Leggatt J in Gestmin in assessing this evidence. In particular, given that the witness statements were prepared for the purpose of proving that the accident happened as a result of the unsafe state of the premises, it is possible that witnesses would play down any unsteadiness on the Claimant’s part. But the witness statement of Mr Hirst supports the conclusion formed by each of the witnesses called by the Claimant to give evidence of events on the day of the accident, namely that AB was not visibly affected by is drinking.

[41]The CCTV footage is potentially of help on this issue and I will turn to considering my assessment of that evidence.

[42]I have indicated already that I have made my own assessment of the CCTV footage, rather than relying on the opinions of witnesses. In his expert evidence, Dr Lemon, called on behalf of the Defendant, commented at some length on the CCTV footage. In his report at paragraph 6.2.6, he states “I consider that it is clear that the Claimant is very unsteady on his feet during his descent of the upper stairs. Whether that unsteadiness is a result of any potential intoxication will be a matter of evidence provided by others.” In oral evidence, he was a little more forceful on the issue, stating, “My interpretation was a drunken man who had lost balance.”

[43]Mr Willems QC for the Claimant submits that Dr Lemon is not an expert in interpreting CCTV footage and that I should draw my own conclusions from such footage. It seems to me that Dr Lemon, who is well experienced in investigating staircase accidents, is likely to have seen far more footage of such accidents than me. That causes me to listen with care to his interpretation of the footage. But ultimately, this is not a matter of expert evidence but rather a case of carefully reviewing the footage in order to come to a conclusion.

[44]It is apparent from the CCTV footage that, as AB went through the curtain, he disturbed it to some extent. He then appears to step down on to the first step, looks sharply down to his feet, then begins to lurch to the right as he descends the upper leg of the stairs. As AB descends the lower part of the upper leg of the stairs, he appears to have his right arm over the balustrade. He then reaches the landing and turns to his right, falling down the lower leg and out of the angle of camera view. It would seem that this fall involved him pitching forward and striking his head, thus causing the skull fracture.

[45]Dr Lemon considers that the effect (and probably the purpose) of “hooking” the right arm over the balustrade is to give AB lateral support. In simple terms, he cannot move further to the right because of the presence of the balustrade and cannot fall to the left because the hooked right arm prevents this. This seems to me to be a sensible analysis.

[46]During the course of cross-examination of Dr Lemon, Mr Willems QC suggested that the Claimant could be seen trying to grasp at the handrail. I have watched the footage and looked at the stills many times. I am not satisfied that this is what is happening.

[47]Dr Lemon stated that, in his view, the CCTV footage is inconsistent with AB having become in some way snagged on the curtain. Though I am satisfied that he made some contact with the curtain, it is not clear to me that contact was sufficient to account for his losing balance on the staircase. For this reason, I do not consider it necessary to explore further in this judgment the criticism that is made of the curtain at the top of the staircase, save in so far as it is relevant to my consideration of the issue of contributory negligence.

The Duty of Care

[48]It is common ground between the parties that the Defendant was the occupier of the Pulse Bar, that the Claimant was at the time of the accident a lawful visitor to those premises and that the Defendant therefore owed to the Claimant the common duty of care pursuant to section 2(2) of the Occupier’s Liability Act 1957, namely a duty to take such care as was reasonable in the circumstances to see that the Claimant was reasonably safe whilst using the premises for the purposes for which he was invited or permitted to be there.

[49]My attention is drawn to section 2(3) of the Act which provides that “the circumstances relevant for the present purpose include the degree of care and of want of care which would ordinarily be looked for in such a visitor…” The point is made on behalf of the Claimant that one of the purposes for entering the Pulse Bar was to consume alcohol and that therefore the Defendant should have had regard to the possibility that visitors were under the influence of alcohol when using the staircase.

Expert evidence

[50]On behalf of the Claimant, Mr Graham Glenn gave expert evidence. He is a mechanical engineer with considerable experience in health and safety issues. He agreed in cross-examination that much of his expert witness work has related to claims arising from asbestos exposure. However, he stated that he had reported on many cases of injury involving falls.

[51]In cross examination, Mr Glenn maintained the opinion expressed in the joint statement to the effect that he would have expected the alteration work to this building to have complied with the relevant Building Regulations and British Standard; that a handrail should have been provided to both sides of the stairs; that there was no handrail on one side; that the design of the other side, the right hand side when descending the stairs, did not amount to a handrail or at least not one that complied with the guidance or recommendations in the Building Regulations or British Standards or any of the guidance in the literature; and that that the purported handrail could not easily or readily be grasped with a power grip in order to arrest a fall. Mr Glenn was also critical of the layout of the staircase generally, in particular, the presence of curtains at the top of the stairs, and expressed concern about lighting levels.

[52]Dr Lemon, instructed for the Defendant, clearly has considerable experience in investigating falls on staircases. I have already referred to his involvement with the relevant British Standard, as well as his work at the Health and Safety Laboratory. He agreed that the staircase should have handrails on both sides and that the presence of the curtain at the top of the staircase was inappropriate. He also agreed, as I have noted above, that the purported handrail on this staircase did not comply with the British Standard. He further accepted that the handrail was not the “idealised” (his word) handrail as contemplated by the British Standard.

[53]He did not however accept that the handrail was not reasonably safe for users of the premises. Whilst Dr Lemon agreed that a handrail of the kind fitted here was not the type of handrail envisaged by the regulations or the British Standard, he considered that the person responsible for the modification of a building is entitled to look at different ways than those envisaged in the Building Regulations or the British Standard of ensuring the safety of those using staircases. Therefore, their relevance was doubtful. The real question was: is this a reasonably safe handrail? Whilst the circular handrail envisaged by the British Standard might be better, in Dr Lemon’s opinion, this type of handrail is reasonably adequate because, as he had demonstrated to his own satisfaction in private testing, an adequate grip could be achieved in the event of a person falling on the stairs.

[54]In the course of cross-examination of Dr Lemon, Mr Willems QC explored the ability of a person to achieve an adequate grip on the handrail here. There was discussion as to whether the grip that a staircase user would have was properly described as the power grip or the pincer grip. In the joint statement, Dr Lemon had asserted that a proper handhold could be obtained on this rail using a “pincer grip”. In cross examination, after his attention had been drawn to the passage in Templer referred to at paragraph 91 below, he described the grip of this handrail to be somewhere between the power grip and the pinch grip. In any event, he maintained that an adequate grip to prevent a fall could be achieved in this way. At one point he said “I have certainly not suggested that the handrail was a perfect shape, but it was fit for purpose and was capable of doing the job that it was supposed to do.” At another point he said “it is not an ideal handrail – it is a functional and robust handrail.”

[55]In answer to questions from me, Dr Lemon compared the type of round handrail envisaged for example by the British Standard with the flat rail present here. He said that the round rail would be preferable from the point of view of the user trying to obtain a firm grip and from the point of view of visibility, but that the flat rail would be easier to grasp. This supposed that one was comparing it with a recessed rail rather than a rail on top of the existing balustrade.

[56]On the issue of causation, Mr Glenn deferred to the judgment of the Court - he did not consider that he had any greater expertise to interpret the CCTV than I had. He contended that a person losing balance on the stairs might not be able to regain their balance and therefore did not accept Dr Lemon’s contention that the Claimant should have been able to control his fall and avoid the descent of the lower flight of stairs.

[57]As I have indicated above, Dr Lemon considers that the video footage is consistent with an intoxicated man who has lost his balance. Nevertheless, he considers that the Claimant should and could have regained his balance. He sees no evidence that the Claimant attempted to take hold of the handrail that was there and concludes that the court should not find that he would probably have been able to take hold of the kind of circular handrail that it is contended should have been present.

[58]Both experts placed reliance on matters within the regulatory material and literature, as well as being cross examined on such material.

[59]In respect of other issues, the experts agreed that the treads complied with the dimensions set out in the Building Regulations, but not the dimensions in the British Standard and that the staircase should have had two handrails.

The Regulatory Material – Building Regulations

[60]The Claimant draws attention to provisions of the Building Regulations and British Standards which it is contended are relevant to consideration of whether the Defendant has discharged the common duty of care.

[61]The Claimant concedes that neither the Building Regulations nor the British Standards create statutory obligations but he contends that the court nevertheless should have regard to the contents of this regulatory material in considering whether the Defendant has discharged the common duty of care, relying upon a passage of Staughton LJ in Green v Building Services [1994] PIQR P259. That case, like this, involved a Claimant who fell down a staircase. It was contended that the staircase did not comply with the Building Regulations 1976 or the British Standard Code of Practice for Stairs, BS 5395. The Claimant lost at first instance. On appeal, she contended that the trial judge had had too little regard to the requirements of the Building Regulations and the recommendation in the British Standard. The Court of Appeal dismissed the appeal, but Staughton LJ commented "… it is a fact that the stairs did not comply with the Building Regulations or the relevant British Standard. That is evidence which we must certainly take into account. It represents the current professional opinion as to what is desirable in order that accidents should be avoided. But it is one thing to lay down regulations and standards, with that objective, and another to define what is reasonably safe in all the circumstances of a particular case.”

[62]The Claimant took me to the Building Regulations 2000 and specifically Approved Document K, “Protection from Falling, Collision and Impact” (published in 1998 and amended in 2000). Requirement K1 provides that “stairs, ladders and lamps shall be so designed, constructed and installed as to be safe for people moving between different levels in or about the building.” In the guidance section, it is stated “an acceptable level of safety can be achieved by different standards of provision, depending on the circumstances: for example, in a public building the standard of provision may be higher than in a dwelling, to reflect the lesser familiarity and greater number of users… this document describes some ways of meeting the requirement (sc. K1).”

[63]Paragraph 1.27 of Approved Document K (“AD K”) provides “stairs should have a handrail on at least one side if they are less than 1 m wide. They should have a handrail on both sides if they are wider… in all buildings handrail height should be between 900mm and 1000mm measured to the top of the handrail from the pitch line or floor. Handrails can form the top of a guarding if the heights can be matched.”

[64]My attention was drawn to the 2010 revision of the 2004 edition of Approved Document M (“AD M”) under the Building Regulations 2000, entitled “Access to and Use of Buildings.” The previous edition of Approved Document M was entitled "Access and Facilities for Disabled People.” It is clear from the 2004 edition of the Approved Document, that the previous approach to securing safe access in the context of those with disabilities is now changed to what is described as “a more inclusive approach to design to accommodate the needs of all people.” (The 2010 revision contains minor amendments to the 2004 version.)

[65]Requirement M1 in the Approved Document states, “Reasonable provision shall be made for people to gain access to and use the building and its facilities.” The notes to the requirements state, “Approved Document K – Protection from Falling, Collision and Impact – contains general guidance on stair and ramp design. The guidance in AD M reflects more recent ergonomic research conducted to support BS 8300 and should take precedence over guidance in AD K where it may appear to conflict.”

[66]Under general guidance at paragraph 0.1 of Approved Document M, the requirements are said to apply if “an existing non-domestic building is extended or undergoes a material alteration.” Paragraph 0.9 provides “under regulation 4 (sc. of the Building Regulations), where an alteration of a nondomestic building is a material alteration, the work itself must comply, where relevant, with requirement M1. This means that alterations to features relevant to the compliance of a building with part M, such as entrances or arrangements for people to get from one level to another within the building, must result in features that comply with requirement M1. Where new features relevant to the compliance of a building with part M are provided, these must also comply with requirements M1.”

[67]Under section 1 of Approved Document M, there is a passage headed “Handrails to external stepped and ramped access.” Following the sub-heading “Design Considerations”, it is stated:

“1.35. Handrails should be spaced away from the wall and rigidly supported in a way that avoids impeding finger grip. 1.36. Handrails should be set at heights that are convenient for all users of the building and should extend safely beyond the top and bottom of a flight of steps, or a ramp, to give both stability and warning of the presence of a change in levels. Consideration should be given to the provision of a second handrail on stairs in a wide range of building types…”

[68]Following the heading "Provisions”, the following paragraph appears:

“1.37 Handrailing to external ramped and stepped access will satisfy requirement M1 ... if: (a) The vertical height to the top of the upper handrail from the pitch line of the surface of a ramp, or a flight of steps, is between 900mm and 1000mm, and from the surface of a landing is between 900 and 1100mm (see diagram 5); (b) Where there is full height structural guarding, the vertical height to the top of a second lower handrail from the pitch line of the surface of a lamp, or a flight of steps, is 600mm, where provided; (c) It is continuous across the flights and landings of ramped or stepped access; (d) It extends at least 300mm horizontally beyond the top and bottom of a ramped access, all the top and bottom nosing of a flight or flights of steps, while not projecting into an access route; (e) It contrasts visually with the background against which it is seen, without being highly reflective; (f) Its surface is slip resistant and not cold to the touch; (g) It terminates in a way that reduces the risk of clothing being caught; (h) Its profile is either circular with a diameter of between 40 and 45mm or oval preferably with a width of 50mm (see diagram 7); (i) It protrudes no more than 100mm into the surface width of the lamp or stepped access where this would impinge on the stair with requirements of part B1; (j) There is a clearance of between 60 and 75mm between the handrail and any adjacent wall surface; (k) There is a clearance of at least 50mm between a cranked support and the underside of the handrail; (l) Its inner face is located no more than 50mm beyond the surface width of the ramped or stepped access.”

[69]Paragraph 3.54 of Approved Document M, headed “Handrails to Internal Steps, Stairs and Ramps” states, “The design considerations for handrails are as those for “handrails to external stepped and ramped access” in 1.34 to 1.36.” Paragraph 3.55 provides “handrails to internal steps, stairs and ramps will satisfy requirement M1 … if they comply with all the provisions contained in 1.37.” Thus, Approved Document M clearly applies to internal staircases such as this.

[70]My attention was drawn to Regulation 4 of the Building Regulations 2010, which came into force on 1 October 2010. It was contended by the Claimant that the work carried out here between October 2010 and February 2011 was a “material alteration” bringing into play the Regulations. That was not disputed by the Defendant. That seems to me correct.

[71]Hence, in my judgment, Approve Document M applies to this staircase and, in so far as there is any conflict between the guidance in that document and the guidance in Approved Document K, the former has precedence.

The Regulatory Material – British Standard

[72]In respect of the relevant British Standard, BS 5395, I was again taken through the development of the Standard.

[73]BS 5395-1:1977 provides at paragraph 12.3.5.4:

“Handrails. In addition to guarding, it is also necessary to provide handrails for the safety and convenience of persons using the stairs. A handrail is necessary for balance and support… it is recommended that every flight of stairs having an aggregate rise of more than 600mm should have a continuous handrail fixed securely at a height of not less than 840mm or more than 1000mm measured vertically above the pitch line. A handrail shall be fixed on each side of the stairway where the width of the stair is 1000mm all over… the handrail section which provides the most comfortable grip is circular and between 45mm and 50mm in diameter. Whatever the shape, the handrail section should be capable of being readily gripped by hand, and sharp arrises should be avoided. Reference should be made to the relevant mandatory regulations.”

[74]BS 5395-1:2000 has a revised section on accidents on stairs at paragraph 6.1. This sets out information as to the frequency of accidents on stairs. Section 6.3 dealing with handrails provides: “In addition to guarding, every stair with two or more rises should have a continuous handrail to provide guidance and support to those using the stair. A suitably designed handrail should prevent users from losing their balance when on the stair, and can also help some users to pull themselves up the stairs. A handrail can also help users to regain their balance in the event of a fall and can reduce the severity of the injuries that might result. Handrails should be:(a) Fixed securely at a vertical height above the pitch line of not less than 900mm or more than 1000mm;

(b) Rigid and strong enough to provide adequate support for users;

(d) A poor conductor of heat, if exposure to heat is likely. Consideration should be given to providing visual contrast between the handrail and its surroundings. Handrails may form the top part of the guarding, as in a stair balustrade, if the heights of the guarding and the handrail can be matched. In no case should the inside edge of the handrail (the edge nearest the walking line) be more than 50mm outside the edge of the stair clear width. The handrails should be free from any obstruction throughout a flight and preferably continuous throughout the stair. Handrail supports should not prevent the passage of the hand throughout the length of the handrail. The handrail should not form the top of the guarding if this guarding finishes under the string of an upper flight or landing, as this will cause some steps to be walked without the support of a handrail. Circular handrails are usually the most comfortable to grasp. A handrail diameter of between 32mm and 50mm is recommended, or of between 40mm and 50mm for the elderly and for people with disabilities. Oval handrails should have a thickness of between 18mm and 37mm horizontally, and of between 32mm and 50mm vertically. In all cases, the handrail should be supported at a distance of between 50mm and 100mm from any guarding which extends above the bottom edge of the handrail, or from any wall, in order to avoid entrapment of the fingers or hand. To allow users a choice when ascending and descending stairs, it is preferable to have a handrail on both sides. Where it is likely that people will be ascending and descending the stair at the same time, such as on the stairs with a stair clear width of 1000mm or more, it is essential to have a handrail on both sides…” (a) Fixed securely at a vertical height above the pitch line of not less than 900mm or more than 1000mm; (b) Rigid and strong enough to provide adequate support for users; (c) Comfortable to grip and without sharp arrises, yet able to provide adequate resistance to hand slippage; (d) A poor conductor of heat, if exposure to heat is likely.

[75]The latest version of the British Standard, BS 5395-1:2000, being the standard in force at the time of the works of modification to this building, includes in the foreword the following passage:

“Use of this document. As a Code of Practice, this part of BS 5395 takes the form of guidance and recommendations. It should not be quoted as if it were a specification and particular care should be taken to ensure that claims of compliance are not misleading. Any user claiming compliance with this part of BS 5395 is expected to be able to justify any course of action that deviates from its recommendations. It has been assumed in the preparation of this British Standard that the execution of its provisions will be entrusted to appropriately qualified and experienced people, for whose use it has been produced. Where methods of design, materials, components and methods of construction are not covered by this standard, or by any other British Standard, this is not necessarily to be regarded as discouraging their use.”

Again the document contains information as to the frequency of accidents on stairs.

[76]Section 4.1, dealing with handrails, provides as follows:

“Use of a suitably designed handrail can prevent users from losing their balance when on the stair and can also assist users to ascend by pulling themselves up the stairs. A handrail can also help users to regain balance in the event of a fall, reducing the severity of the injuries that might result. The need for a handrail on both sides of the stair comes from two sources. Firstly, to allow users a choice of support when ascending and descending stairs, it is preferable to have a handrail on both sides. This can be essential for people using a walking stick or cane or who might be weaker on one side. The other reason is that having two handrails reduces the chances of a serious incident happening on a stair. Every stair should have two continuous handrails, one on each side of the stair, to provide guidance and support to those using the stair. It is advantageous to many stair users to be able to reach either handrail or both handrails at the same time in which case, the distance between the handrails should be between 800mm and 1200mm. Handrails should: (a) Be fixed at a vertical height to the top of the handrail above the pitch line between 900mm and 1000mm; (b) Continue across intermediate landings at a vertical height to the top of the handrail above the landing between 900mm to 1100mm where this is practicable e.g. not across doorways or obstructing adjacent circulation routes; (c) Be fixed parallel to the pitch line oversteps, or horizontal over landings; (d) Be rigid and strong enough to provide adequate support for users; (e) Be comfortable to grip and without sharp arrises, yet able to provide adequate resistance to hand slippage; (f) Allow the entire hand to form a grip around the handrail, rather than a less secure pinch grip which uses just the fingers. This requires a clear mounting distance between the bottom of the handrail and the top of the stair balustrade of at least 50mm; (g) Be continuously graspable along their entire length. Handrail brackets or balusters attached to the bottom surface of the handrails are not considered to be obstructions to a person’s grip, provided that they do not project horizontally beyond the sides of the handrail within 50mm of the bottom of the handrail; (h) Be a poor conductor of heat, if exposure to heat or temperatures below 0C is likely; (i) Extend at least 300mm on plan beyond the top and bottom nosing of a flight or flights of steps, providing it does not project into an access route; (j) Be finished so as to provide visual contrast with the surroundings against which it is seen.”

Handrails should:

[77]The Claimant’s case is that the handrail here does not comply with these recommendations. It is not round or oval in profile; it is not mounted on brackets so as to allow the hand to pass around it easily; it is not visually distinctive from the upright on which it is mounted. Indeed, the Claimant points out that it was not what was originally intended for this location at all and was probably never intended or designed (at least by the architects) to act as a handrail.

[78]For the Defendant it is argued that the only relevant requirements contained in any of the regulatory material are those in K1 (“stairs, ladders and ramps shall be so designed, constructed and installed as to be safe for people moving between different levels in or about the building”) and M1 (“reasonable provision shall be made for people to gain access to and use the building and its facilities”). The Defendant contends that both were complied with.

[79]In evidence, Dr Lemon was challenged on his assertion that the handrail here amounted to adequate compliance with the Regulations and the British Standard. He agreed that it did not comply with the letter of the British Standard as to being continuously graspable along its entire length or as to being mounted at least 50mm off the underlying balustrade. Although he had been involved in the preparation of parts of the 2010 British Standard, he stated that he did not agree with all aspects of it.

[80]As regards the regulations, Dr Lemon considered that Approved Document M was not really applicable as this was an internal staircase and that the handrail complied with Approved Document K. (As indicated above, I consider that he is clearly wrong as to the applicability of Approved Document M). He stated that, in his opinion, the Building Regulations were more important than the British Standard in setting out guidance for the construction of a staircase.

Health and Safety Executive Literature

[81]I was referred to literature published by the Health and Safety Executive. In essence, this literature supports the contention that care is required in the design of staircases and in particular handrails because of the risk of injury to staircase users. It does not in my judgment add to the regulatory material referred to above. The Maki report - Efficacy of handrails in preventing stairway falls: a new experimental approach.

[82]There was considerable cross-examination of both experts on the Report of Maki, Perry and McIllroy, ‘Efficacy of handrails in preventing stairway falls: a new experimental approach’, Safety Science 28: 189-206 published in 1998. In fact, much of that cross-examination went to issues of credibility rather than directly to the issue of whether the handrail here was reasonably safe.

[83]In essence, Maki et al sought to investigate an experimental approach to study the ability of a person who had fallen after losing their balance on a stairway to grab a handrail. Their approach involved studying subjects who were standing on a moving platform which was in the form of a mock staircase and which would decelerate suddenly, causing the subject to pitch forward. They concluded that all movement occurred remarkably speedily, with the earliest onset of muscle activation beginning within 0.2 seconds of the onset of perturbation, initial contact with the handrail occurring within 0.5 seconds and full grip being achieved within 0.6 seconds. The authors consider this to be consistent with the movement being a reflex rather than volitional movement. They recorded that substantial forces were generated in the arm. They considered that a handrail with a circular cross-section was beneficial in that it was possible to achieve a functional grip regardless of the angle of attack.

[84]Cross examination in respect of this study focused in particular upon the methodological approach. The authors themselves acknowledged the potential limitations of the study, given that the subjects were aware of the nature of the test being carried out and that there was potentially a difference between a person walking down the staircase and a person moving forward on the platform standing on a simulated staircase.

[85]Dr Lemon in particular was critical of the weight that could be attached to this study. Mr Willems QC for the Claimant made the point that it was really the only material available and that, whilst there might be shortcomings in the methodology, no one else has come up with a better approach, still less one that contradicted the findings.

[86]As the case developed, it became common ground that the amount of time that AB had to take hold of the handrail was well in excess of 0.5 seconds and that therefore the evidence as to reaction times did not assist me in deciding the case. Nevertheless, the Claimant relies upon criticisms of Dr Lemon’s analysis of this report as going to his reliability on other issues.

Health and Safety Laboratory Literature

[87]The Claimant drew my attention to a document headed ’Falls on Stairways – Literature Review’, published by the Health and Safety Laboratory in 2005. The project leader was one Anita Scott and the document is recorded to have been approved by Dr Steve Thorpe. As the title suggests, the document reviews a quantity of material relating to falls on staircases. The Building Regulations and British Standard are cited including the passage from BS 5395 stating, “Circular handrails are usually the most comfortable to grasp.” The document also cites the Maki research.

[88]Dr Lemon criticised the report from the Health and Safety Laboratory. It was pointed out in cross examination that he had worked at the laboratory and he acknowledged that the report was authorised by Dr Thorpe, with whom he had written a chapter in a book ‘Understanding and Preventing Falls’ edited by Haslam and Stubbs. Nevertheless, Dr Lemon maintained that the Health and Safety Laboratory literature review should have expressed great caution about the methodology in the Maki research. Pauls:

“Are functional handrails within our reach and grasp?”

Southern Building, September/October 199, p.20.

[89]An article by Jake Pauls in 1989 reviewed evidence as to graspability of handrails and produced a summary diagram at figure 2 (page 28 in the report, page 363 in the literature bundle). It was suggested that the handrail in this case was closest to that marked “L” in the figure, a design which is described as ‘very poor’. In point of fact, the handrail marked “L” is, applying the scale on the figure, around 50 mm wide. As indicated above, the handrail in this case was around 138 mm wide. Thus, although it may be the closest in the figure, it is not very close at all to the handrail in issue here. The Staircase, John Templer (published in 1992 according to the index to the bundle of literature)

[90]I was referred to various passages in a book by John Templer entitled ‘The Staircase’. That book, like other literature relied on by both sides, refers to the perhaps obvious point that alcohol consumption may lead to falls on staircases. At paragraph 1.2.6 it is stated:

“alcohol consumption may induce stair falls. From Svanstrom’s study (1973), about 16% of people who fell on the stairs had consumed alcohol immediately before the accident…”

[91]Templer also summarises evidence relating to the design of handrails. Having asserted that “handrails help to reduce the incident and severity of stair accidents”, it is stated at section 6.3, under the heading “Handrail size and geometry”:

“Those who have examined the question of the handrail shape have agreed that a circular shape will maximise tangential forces over a wide range of hand sizes and shapes. Several researchers have studied grip force… examining the various types of grip, including the power grip (figure 6.2) and pinch grip (figure 6.3). These studies are not strictly transferable to handrail applications; nevertheless, they provide influential evidence that the power grip is likely to permit a stronger grasp than the pinch grip. The power grip, by definition, brings all of the finger and hand segments into contact with the handrail, which is necessary in order to optimise the effective normal forces. The most thorough and recent study of handrail shape was by Brian Maki (1985)… he concluded that the largest stabilising forces were generated by using 1.5” (3.8cm) circular rails. The smallest forces were generated using the vertical rectangular and the decorative rails… For grip and sliding comfort, based on the preference, the circular and overall handrails had the best ratings; narrow rectangular and decorative railings had the worst. Handrail shape also must be considered for uses that are not of the grip pull–up or push–down kind. There are times, probably during falls or where a loss of balance has occurred, when one may have to push away from the handrail or pull oneself toward it. By definition, these are normal forces, and, in the former case, the force is usually transmitted through the surface of the hand with no gripping. To minimise tissue damage or discomfort, the load should be spread over as much of the hand as possible. Handrails with elaborate mouldings may act to concentrate on forces on an edge of a decorative element and for this reason are undesirable. Ideally then a handrail that will meet the condition best will present a large surface area. When one has to pull oneself towards the handrail, perhaps to prevent a sideways fall in the opposite direction, the pull is transmitted largely through the hand with fingers locked across the rail and protruding down on its far side. The handrail shape to optimise this action is the same as that for the push–pull action except that we are largely concerned with the shape on the outside of the rail. Therefore, the shape must maximise the number of finger joints contributing to the pulling force. Obviously tissue damage or decreased performance will be present also if we must pull against some sharp–edged ornamental moulding. Certain shapes and sizes may force the wrist away from an optimal position to grip the rail. This is particularly important for the elderly, who may have a reduced range of joint rotation and loss of strength. Maki and Fernie have pointed out: ‘the line of action of the push/pull force should coincide with the natural thrust access of the forearm, i.e. a line passing from the lateral edge of the elbow to the top of the extended index finger. Handrail shapes and sizes that require wrist extension or flexion (away from the optimal position) to achieve a comfortable (i.e. conformable) gripping position will shift this line of action, resulting in a bending movement about the wrist. This movement must be resisted by the wrist musculature, which may limit the amount of handrail force that can be generated. A handrail with a wide, flat upper surface would seem to create this sort of problem (e.g. oblong with major axis horizontal) and should therefore be avoided’.”

[92]Under the heading “Handrail visibility” at paragraph 6.4.5, Templer says:

“curiously, the literature on stair safety seldom discusses handrail visibility (however Alessi, Brill and Associates 1978) and yet the need for visibility seems obvious. Consider, for example, a white painted handrail fixed to a white wall or a dark wooden handrail to be viewed against a background of similar hue. It may be quite difficult to perceive the handrail with precision during a fall, and this is likely to be a major problem for those with visual impairments. It seems to make good sense that the handrail should be visible and stand out against the background.”

[93]The distinction between the “pinch” grip and the “power” grip was one that Dr Lemon in particular commented on at some length. He distinguished the power grip, the pinch or pincer grip and the grip of the handrail that was present here. He described the last as “a curious amalgam of the pincer grip and the power grip – it is not referred to in the literature.” He accepted that the grip that could be achieved on this handrail was less effective than the power grip.

Feeney and Webber: Safety Aspects of Handrail Design: A Review

[94]This review, published in 1994, cites Templer on the issue of handrail shape and size at some length. It reproduces a figure similar to that in Jake Paul’s review, summarised above, again describing the handrail shape which is closest to that present in the Pulse Bar as one “to be avoided” – again in fact the profile illustrated is significantly narrower than that present in the Pulse Bar.

[95]Feeney and Webber consider whether a handrail is likely to be of assistance in helping a staircase user who has lost balance. They state:

“it is improbable that in falling a user would be able to alter the hand position and grasp the handrail. Even if the user could do this, it is doubtful whether it would be enough to arrest that fall…”

Mr Willems QC for the Claimant points out that this paper was written before the Maki paper referred to above and therefore does not refer to the later research.

[96]The authors conclude with the following comments:

“Guidance which can be provided with confidence is: (a) The handrail height should be between 935 mm and 1000 mm above the pitch line for adults. (b) The shape should be circular and of 32 to 50mm diameter, or oval with a thickness of 18 to 37mm horizontally and 32 to 50mm vertically. (c) The handrail should be of varnished hardwood, enamel paint on metal or vinyl or Doverite-covered steel. The following guidance is suggested but should be validated: (d) The clearance between the handrail and the wall should be between 80 and 92 mm. (e) The handrail should extend 30 mm beyond the top and bottom of the stairs. (f) The handrail should be in visual contrast to its surroundings. (g) A handrail should be provided on both sides of the stairs.”

The following guidance is suggested but should be validated:

[97]The authors also consider the concepts of grasping and gripping, suggesting definitions of them as follows:

“ease of gripping – the characteristics which enable a handrail, once it has been taken hold of, to be easily and continuously held and afford a secure support for the hand to prevent a fall occurring.” “ease of grasping – the characteristics of a handrail which enable it to be taken hold of and which, in an emergency, assist in arresting a fall.”

Understanding and Preventing Falls, Chapter 3: Steps and Stairs – Mike Roys

[98]This chapter, part of the book published in 2006 to which reference was already been made in the context of the joint work of Dr Lemon and Dr Steve Thorpe, cites research, including that of Maki in support of the contentions that:(a) It is important to have a handrail within reach throughout the whole of a flight of stairs;

(b) The optimal handrail height is between 900mm and 1,000mm

(c) Circular handrails with a diameter of between 32mm and 50mm offer the best combination of size and shape for enabling a strong grasp in normal use.

Breach of duty

[99]In my judgment, the handrail that was present on this staircase fell well below the standard of reasonable provision for a new staircase being constructed in 2010. The regulatory material and literature referred to above provide strong support for the contention that a piece of wood attached to a low wall in this fashion is less safe than alternative arrangements. That in my view is particularly so in the context of the use of these premises for the sale and consumption of alcohol, given the acknowledged and obvious increased risk of falling to users of staircases who have been drinking.

[100]In spite of Dr Lemon’s obvious experience as an expert in the field of falls and staircases, I formed the view that he was understating the appropriate standard for the handrail here. I came to this conclusion for a number of reasons:(a) On any version of events, this handrail did not comply with the British Standard referred to above. Further, it did not comply with the mode of satisfying the Building Regulations set out in Approved Document M. (For the reasons set out above, I am satisfied that Approved Document M applied to this modification.) Those recommendations and the standard seem to me to reflect a considerable body of literature which favours a circular handrail over other designs.

(b) Dr Lemon conceded in cross examination that the handrail was not ideal.

(c) Dr Lemon conceded in cross-examination that the circular handrail was preferable to the handrail present here, in terms of the grip that could be achieved and its visibility.

(d) Dr Lemon’s opinion that a person could nevertheless obtain an adequate grip so as to prevent a fall using the flat piece of wood seems to be based entirely upon his own experimentation. It appears to be contrary to all of the literature referred to above. It is certainly contrary to my attempts to grip the flat piece of wood. I found it difficult to get a firm grip on that, whereas I found it easy with the circular piece of wood. This may reflect a difference in the size or strength of our hands. But it seems to me that I can properly assess his evidence by seeking to reproduce what he asserts. In so doing, I am unpersuaded by his conclusion.

(e) Dr Lemon’s opinion that a flat handrail of this design would be easier to grasp in an emergency than a circular handrail seemed to me flawed. He supposed, as I have indicated above, that the alternative handrail would be a recessed circular handrail. If one starts from the assumption that there was to be a low wall of the height of the wall present at the time of the accident, I can see why he made that assumption, since the height of this wall would render any handrail attached on brackets above it too high. However, this seems to me to be a wrong assumption. A designer thinking about a reasonably safe staircase would, having looked at the relevant British Standard, regulations and guidance, conclude that the handrail that should sit above the balustrade, rather as in the manner of the original building drawings. Hence the wall would not have been built so high, allowing the handrail to sit on brackets at an appropriate level above it.

(f) The handrail that was present at the time of the accident was relatively difficult to distinguish visually from the low wall on which it is positioned. Indeed, the user of the staircase might not realise that there was anything to grip more than the squared off top of the balustrade and might not identify that there was a handrail at all. It seems to me that a person using this staircase would be deterred by its lack both of identifiability and visibility from using the handrail, whether simply to run their hands down it whilst descending the stairs or to seek to regain balance in the event of that being necessary.

(g) The modification works here included the construction of a new staircase, as indicated in the plans from the architects. There was nothing to stop the occupiers from building a staircase that complied with the ideal of the British Standard.

(h) It was accepted by Dr Lemon that the installation of a handrail of the kind anticipated in the British Standard and the Building Regulations would not have been expensive – he described it as “a minor cost in the scheme of refurbishment.”

(i) It appears from the communication between Manchester City Council and the architect, Mr Haslehurst, that the architect contemplated the installation of a handrail, as in Victoria’s, which would have complied with the relevant Standard and Regulations. I can see no evidence to support the conclusion that anyone applied their mind to the issue of the alternative design in fact present at the time of the accident. (Of course, if the layout was inadvertently reasonably safe, the Claimant could not succeed in a case based upon a failure of the occupier to apply its mind to the safety of the premises. Nevertheless, when the Defendant points to the parts of the regulations and standards that indicate that they provide guidance only compliance with which is only one way of achieving a safe staircase, then the fact that there is no evidence of analysis of the layout in fact adopted makes it easier for the Claimant to demonstrate a want of care in the development of the building.)

[101]Further, the presence of the curtain at the top of the staircase adds to the hazard. It disguises the staircase from view, which in my opinion, though not relevant to primary liability here, does bear on the issue of contributory negligence. Dr Lemon said that “he would not disagree” with that suggestion.

[102]The Claimant also assert that the premises were not reasonably safe by reason of the absence of a second handrail, the dimensions of the treads on the staircase, the unsatisfactory lighting and the general layout of the staircase.

[103]Dr Lemon accepted that to be, as he put it “fully compliant” with the British Standard, there should have been a second handrail on the opposite side. It seems to me that the literature and regulatory material referred to above support the contention that, in premises such as this, where there are likely to be people with varying restrictions in mobility using the premises and people passing on the stairs, the arrangement was not reasonably safe.

[104]As regards the dimensions of the treads, as indicated above, Mr Glenn did not measure the treads on the upper part of the staircase. Whilst it is likely that those friends were similar in measurement to the lower leg, those measurements taken by Mr Glenn indicated that the lower leg complied with the Building Regulations, but not the British Standard. Given the differing standards and the lack of direct evidence as to the measurement of the treads on the upper leg, I am not satisfied that the staircase was unsafe by reason of the measurement of the treads.

[105]There is insufficient information before me to judge whether the level of lighting was satisfactory and in those circumstances I do not find that the staircase was not reasonably safe for visitors to the premises by reason of the lighting levels.

[106]Equally, I am not satisfied that the layout of the staircase and in particular the 90 turn rendered the staircase unsafe. In the context of this accident, a straight staircase might have been more dangerous, since there was less chance to change direction and avert the ultimate headlong fall.

Causation

[107]On the issue of causation, I have to consider what would probably have happened but for the breach of duty identified above. The proper discharge of the common duty of care would have involved the staircase having a handrail at least 50 mm higher than the balustrade (however that balustrade had been constructed). As I have indicated above, I am not satisfied that the presence of the curtains, the dimensions of the treads, the lighting or the general layout of the staircase contributed to the Claimant losing his balance. In my judgment, he was unbalanced on stepping on to the first step, whereupon, possibly because of the consumption of alcohol, he lurched to the right.

[108]In so far as Dr Lemon considers that the effective cause of the accident was the Claimant’s failure, once he had lost his balance to take hold of a handrail that was easily graspable, this seems to me to pay too little regard to the research and thinking behind the regulatory material. Had there been a visible and identifiable handrail of the type recommended in the British Standard and/or the Building Regulations, it seems to me that the Claimant would have had plenty of opportunity to take hold of the handrail. In spite of Dr Lemon’s analysis, I do not agree that the absence of evidence that he attempted to do so in the accident undermines the conclusion that he would have done so. On the contrary, the presence of a suitable handrail would have enabled him to do exactly that which one would have expected him to try to do. Whereas a failure either to try or to achieve a grip on this handrail is understandable, given its failings, it seems to me very probable that he would have succeeded in taking hold of a properly constructed rail.

[109]As to whether taking hold of such a handrail would have avoided his injury, that seems to me overwhelmingly likely. It is clear that it was the fall down the lower leg of the stairs that led to his skull fracture and brain injury. Given the fact that he was still on his feet during his descent of the first leg, he would not have had great difficulty in steadying himself had he been able to take hold of the rail.

[110]Indeed, Dr Lemon confirmed this view, saying “Had the Claimant made an attempt to grasp the handrail, I am sure that he would have been able to apply sufficient force to arrest his fall.” That comment was made in the context of the actual handrail present in the bar. The conclusion seems to me to apply with equal if not greater force to the type of handrail that, in my judgement, would have been reasonably safe provision in this location.

[111]On my findings, the presence of the curtain at the top of the stairs, though dangerous, did not contribute to this accident, beyond restricting AB’s vision of the staircase and therefore ability to see the handrail. I cannot be confident that he would have taken hold of the handrail before starting his descent of the staircase, had it not been hidden from view, but this is certainly a possibility. Given this and my finding above in respect of why AB lost his balance, I do not consider that the danger is created by the curtain is shown to be the causative of the accident.

[112]In respect of the absence of a second hand rail, given the Claimant’s location and path on the staircase such a handrail would not have had any relevance to avoiding the accident, unless it had cause AB to take a different path down the stairs. That is speculation and I therefore conclude that the absence of a second handrail was not causative.

Contributory negligence

[113]On the issue of contributory negligence, Mr Kennedy QC for the Defendant (upon whom the burden of proof lies) contends that the balance of blameworthiness and causative potency lies with the Claimant. He was responsible for his condition at the time of the accident. He was responsible for his loss of balance. Everyone else visible on the CCTV footage was able to negotiate the stairs successfully. It was incumbent on him to approach the stairs with the requisite degree of caution, given what he knew about his intoxicated state.

[114]Mr Kennedy points out that the Claimant was not holding the hand rail or even using it for guidance. He says that, If AB went down the staircase when he should have realised that he needed the assistance of the handrail, he was very negligent. He draws my attention to passages in the judgment of Viscount Dilhorne at page 570f in Wheat v Lacon

[1966] AC 552

and Mackay J at paragraph 57 in Lips v Older

[2004] EWHC 1686

[115]For the Claimant, Mr Willems QC says there is no direct evidence that alcohol played a part in this accident. If it did, it was no more than a contributor to the Claimant missing his footing. That would have been an event of no significance, but for his inability to steady himself because of the absence of the handrail.

[116]There was some debate during the case as to whether the Claimant could reasonably have steadied himself once he reached the landing by the front door. Dr Lemon felt that he might have done (see paragraph 13.1 of the joint statement of experts); Mr Glenn considered that the Claimant was already out of control and could not be criticised for failing to do so.

[117]In my judgment, any fault on the part of the Claimant here was no more than momentary inattention leading him to stumble on the stairs. That is not it seems to me the kind of blameworthiness that should lead to a finding of contributory negligence. As regards the assertion that the Claimant should have used a handrail to descend the stairs, the presence of the curtain in front of the stairs means that vision of the handrail is obstructed until one is at the top of the stairs. Even then, such handrail as is present on the right hand side is difficult to see and there is no handrail on the other side. Had AB used the handrail to his right hand side as he descended, it seems to me that this fall probably would not have happened, but the Defendant has not satisfied me that his failure to do so, in the circumstances of this accident, amounts to blameworthiness that should lead to a finding of contributory negligence.

[118]As to the suggestion that the Claimant could and should have regained his balance on the landing, that seems to me to a counsel of perfection and well beyond what could be considered blameworthy.

Conclusion

[119]For these reasons I find that the Claimant succeeds in showing that the Defendant was in breach of its duty pursuant to the Occupiers’ Liability Act 1957 to take such care as was reasonable in all of the circumstances to see that the Claimant was reasonably safe whilst using the premises. I reject the allegation that the Claimant contributed to the accident through his own blameworthy conduct. I therefore conclude that the Claimant should recover damages in full for the injuries sustained in the accident.