Burgess v Plymouth City Council

J U D G M E N T

1. LORD JUSTICE MAURICE KAY: This is an appeal from the Torquay and Newton Abbott County Court. On 20 May 2005 His Honour Anthony Thompson QC sitting as a Deputy Circuit Judge, gave judgment following a trial on liability only in a personal injury action. He held that the claimant, Mrs Burgess, had established liability on the part of the defendant Council but that there had been contributory negligence on the part of the claimant to the extent of 50 per cent. The Council is now the appellant in this court, permission to appeal having been granted by the trial judge.

2. It is apparent from his judgment that the judge experienced some difficulty in making factual findings in this case because of the inconsistent way in which Mrs Burgess had described the accident on different occasions between February 2002 and the trial. The common ground is now as follows. Mrs Burgess was employed by the Council as a dinner lady and cleaner at the Earnsettle Junior School in Plymouth. After the end of the school day on 27 February 2002, at about 4.00pm, she was cleaning classroom no.3. She was wiping a group of three tables which were positioned just inside the door through which she had previously entered the classroom. In the area between the tables and the door she fell over an object on the floor. It was probably a plastic container of a type which was customarily used in the classroom for the storage of children's lunch boxes. It was referred to by the judge as a "lunch box container". It was 43cm long, 34cm wide and 25.5cm high. It was made of plastic. It was bright blue in colour. Mrs Burgess fell and injured her knee and her back. At trial, some three years or more after the accident, Mrs Burgess had been unable to return to work. The judge described her as "a very nice lady who had a very nasty accident".

3. The system in relation to such lunch box containers was that two were kept in the classroom. Children who brought their own lunch to school in small plastic boxes deposited those boxes in one of the containers at the start of the day. They were then kept in the classroom in that form until lunchtime. After lunch, the empty lunch boxes would be.put back into the two lunch box containers, which would then be stowed in a safe place within the classroom. At the end of the school day the children would retrieve their individual lunch boxes from the containers, collect their coats and go home. By the time Mrs Burgess would enter the classroom to clean, the lunch box containers should have been returned to their safe positions. On this occasion, at least one of the them had not been. It had been left in a position between the entrance door and the group of three tables.

4. The judge referred more than once to the size and visibility of the container or containers over which Mrs Burgess had fallen. He said that they were "immediately in front of her as she came in through the door and were there for her to see, but unaccountably she did not see them". Later he added:

"I really find it extremely difficult to understand how she can have failed to notice these objects as she came into the room. This is after all only a classroom. It was not some vast hall. As far as one can see from the photographs and from the drawings which people had made the boxes would have been staring her in the face, right in front of her, as she came into the room. Then as she walked round, going round the tables cleaning them, there again because of their size I would have thought they would be very obvious and plain for anyone to see... she does not have problems with her eyesight."

5. The judge based the liability of the Council on a breach of Regulation 12 of the Workplace (Health Safety and Welfare) Regulation 1992. Regulation 12(3) provides:

"So far as is reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall."

6. The judge held that it had been reasonably practicable for the lunch box containers to be safely stowed away at the side of the room in accordance with the usual system. He added:

"... Obviously if you walk into something which is 25/26cm high you are liable to fall over it, so I think it does fall foul... of the... provision of Regulation 12(3)."

7. Turning to the contributory negligence, the judge referred to the range of Mrs Burgess' duties and found that she "knew full well what the system was in this particular school". He was unimpressed by her assertion that it was not her place to tidy up things which were left lying around. He said:

"I thought it was an elementary thing that one would do for one's own safety and I should also have thought that it makes the job of the cleaner more difficult if you leave objects lying around rather than putting them out of the way. But there it is. I think to a certain extent Mrs Burgess must clearly be regarded as the author of her own misfortune. Although she has established a breach of duty on the part of the [Council] I really find it extremely difficult to understand how she can have failed to notice these objects as she came into the room."

He then added the passage to which I have referred earlier in this judgment, before concluding:

"... in those circumstances I think she must be held to be 50% to blame for this unfortunate accident, simply because she was not keeping a proper lookout for her own safety and failed to see what was not in any way a trap or a hidden hazard, but something which was plain and obvious for anyone to see who looked where he or she was going."

8. In an uncomplicated personal injury case in which no difficult question of law arose it was unusual for the judge to grant permission to appeal to this court. In these circumstances, it is appropriate to set out his written reasons for granting permission:

"On the factual matrix of this case where the claimant was in the course of cleaning the classroom when she fell over a plastic basket measuring 43cm by 34cm by 25.5cm which was plain and obvious for anyone to see the defendants were nonetheless guilty of a breach of Regulation 12(3) of the ... Regulation."

On the face of it, it is not obvious why this was thought to give rise to an appeal with a real prospect of success or to any other compelling reason for granting permission to appeal.

9. Initially, grounds of appeal were settled by counsel who had appeared at the trial. However, most of that pleading has now been abandoned by Mr Hogarth QC, who did not appear at the trial. He bases his submissions on a new skeleton argument which is said to be a development of the original third ground of appeal which had asserted that it was the very nature of Mrs Burgess' job to ensure that there was compliance with Regulation 12(3) in the classroom.

10. It is an important feature of the case for the Council that Mr Hogarth seeks to rely on a finding that Mrs Burgess was employed to tidy up in the classroom and that it was therefore her job to remove the lunch box container. I am bound to say that it is not clear to me that there was a finding that Mrs Burgess was employed to tidy away the lunch box containers. It is true that the judge said that he was "not wholly impressed" when Mrs Burgess said that it was not her place to tidy up things which were left lying around. However, I do not interpret the judgment as a whole as incorporating a finding as characterised by Mr Hogarth. It is significant that the judge immediately proceeded to say that he regarded it as an elementary thing

"that one would do for one's own safety and I should also have thought that it makes the job of the cleaner more difficult if you leave objects lying around rather than putting them out of the way."

11. In the final analysis, I do not consider that the question whether Mrs Burgess was employed to tidy away items such as the lunch box containers was determinative of the finding of a breach of duty. As I read the judgment, it amounts to a finding that a floor or the surface of a traffic route had not been kept free from an obstruction "which may cause a person to ... fall". Moreover, it would have been reasonably practicable for the floor or the surface of the traffic route to have been kept free. There was a system in place which, if followed, would have resulted in the lunch box container being safely out of the way. The evidence was that this was a responsibility of the teacher. Mr Manuel, the deputy head teacher who was in the classroom at the time of the accident, accepted that lunch box containers ought not to have been in the place where Mr Burgess fell over one and that there had been a failure of the system. Plainly, if the system had been correctly operated, the lunch box container would not have been in a position where Mrs Burgess fell over it. It was an obstruction or on article which "may cause a person to ... fall" and it was reasonably practicable for it to have been safely stowed elsewhere. In my judgment, the case on breach of duty is as simple as that. Whilst I accept Mr Hogarth's submission that Regulation 12(3) includes an element of foreseeability - "any article ... which may cause a person to ... fall" - in my judgment this does not sustain an argument to the effect that Mrs Burgess was not a person protected by the statutory duty in question.

12. Mr Hogarth seeks to criticise the judgment on the basis that although it includes a finding that the container ought not to have been where it was and that it was reasonably practicable for it to be safely stowed elsewhere, it does not address the further question: was it something that might foreseeably have caused anyone to fall? He suggests that this omission caused the judge to treat the case as one of strict liability. I do not agree. In my view, Mr Hogarth's approach to the judgment is over-analytical, and his extensive citation of authority is not to the point. The judge had the words of Regulation 12(3) well in mind. The school knew full well that the container and many other articles might cause accidents if not stowed away. That is why it had a system to avoid that risk, one facet of which is, in the words of Sedley LJ in Anderson v Newton College of Further Education [2002] EWCA Civ 550 at paragraph 5:

"... people do not always look where they are going."

The plain fact of the matter is that if the system had been operated correctly the accident would not have happened. All the matters which Mr Hogarth emphasises are matters which go to the issue of contributory negligence and were properly treated by the judge as such. It was inevitable that there would be a substantial finding of contributory negligence. Mrs Burgess had entered the room through a door leading precisely to the point where the obstruction was placed. It was a large and conspicuous obstruction. It was reasonable to expect that to make her job easier and for her own safety she would move the lunch box container to its normal safe position. However, she was not keeping a proper lookout and she failed to see an obvious hazard.

13. The original grounds of appeal sought to take issue with the finding of 50 per cent contributory negligence and contended that the judge "ought to have found Mrs Burgess substantially more to blame for the accident". This was a matter of fact and degree, pre-eminently a matter for the trial judge. But wisely Mr Hogarth does not seek to pursue the appeal on this issue. Having found no error in relation to the breach of duty or contributory negligence, I would dismiss this appeal.

14. LADY JUSTICE SMITH: I agree.

15. SIR ANTHONY CLARKE: I also agree.

(Appeal dismissed; Appellant to pay the Respondent's costs; the cost of the appeal is summarily assessed at £8,800, inclusive of VAT; in addition the appellant to pay the same percentage of success fee as is directed by the district judge).