Caerphilly County Borough Council v Button

This is an appeal against the judgment of HHJ Curran QC given at the Cardiff County Court on 17 May 2010. The judge gave judgment for Linda Button (“the respondent”) in a claim for damages against her employers, Caerphilly County Borough Council (“the appellants”). Damages were agreed subject to liability.

Before considering the issues, I should wish to draw attention to a procedural matter which has been canvassed with counsel. The case had been listed for two days. In the event the evidence finished, no doubt with proper expedition from counsel, who both appear today, by the short adjournment on the first day. Counsel expected to make closing oral submissions in the usual way immediately after the short adjournment. Indeed, Miss Brown, who appears for the appellants, dutifully pressed that she and Mr Venmore, who appears for the respondent, should be heard.

The judge did not accede to that submission. He, like many other judges, was busy, and he referred to a reserved judgment in a more complicated matter he had to prepare. He was also due to sit in London, and, in the result, he gave a total of 22 days in which counsel should present their written submissions. Especially as the case had been listed for two days, it was in my view unfortunate that the application of counsel to be heard orally was not acceded to.

Our system of justice is based on the opportunity of the parties to make oral submissions, and that is particularly important in a case such as the present. Sometimes it is not possible, because a case goes on late in the day, or because it has exceeded its time estimate, where the better course in all circumstances, is to have submissions in writing, rather than to hear counsel orally. I know from experience the value which oral submissions can have. They provide an opportunity for counsel to analyse the evidence which has just been given, and to make submissions on the evidence and on legal points. It gives the opportunity for debate between Bench and Bar, which I regard as a valuable part of our system of justice.

The judge would have been helped in this case had he had the quality of submission on the legal points and the evidence which we have had today. It would have made his task in preparing a judgment easier, it appears to me, had he had the benefit of timely oral submissions. However, no ground of appeal is based on this, and I do not regard either side as having been any worse off than the other as a result of the course which the judge took.

What cannot be said is that the judge’s analysis of the evidence in setting it out in his judgment was anything less than sufficient. To confirm that, I take from his judgment the basic narrative at paragraphs 2 to 5:

“The claimant’s [that is the respondent’s] place of work at Enterprise House, Tir-y-berth in the County of Gwent, where she was employed by the defendants [that is the present appellants] as an Occupational Therapist Assistant.

3.

A car park is provided to one side of the building in which the claimant worked. The car park is accessed by a road or driveway which passes through double gates adjacent to the front of the building. The driveway has a downward gradient as cars drive from the gates towards the far end of the car park.

4.

At the offside (as cars enter the car park) is a verge that separates the driveway from the car parking area. The driveway is at a higher level than the car parking area at the end closest to the gates at the top end of the car park. As the driveway gets closer to the far end of the car park, the difference in level reduces until, at the end of the verge the surface of the driveway and the surface of the car park are at the same level. At the top end of the car park (where the difference in levels between the driveway and the car park is greatest) the verge slopes down from the driveway towards the surface of the car park. At the time of the accident, the verge consisted of little more than bare earth. Following the accident, the earthen verge was concreted over.

On the day of the accident, the claimant parked in the top space of the car park nearest the gates. She explained that this was her preferred spot because it was closest to the gate. She had a bag in each hand, She said the area was in the condition shown in the photographs marked D1 and D2. She stepped from the tarmac surface of the car park onto the verge and says that she caught her foot on the top of the kerb, tripped and fell.”

It is clear from the evidence that the foot which tripped was the trailing foot. Members of the court have seen photographs D1 and D2, which are of good quality, and give a clear indication of the situation at the place where the claimant tripped. The judge set out matters which were not in dispute. He then set out the issues which arose, detailing the negligence and allegations under the Workplace (Health, Safety and Welfare) Regulations 1992. The judge summarised the evidence in relation to the respondent:

“She went to the boot of her car to take out her lunch and her handbag. She stepped off the car park onto the verge, and caught her foot on the top of the curve and tripped. ‘I walked straight across the verge. My estimate of the difference of level is about three inches.’ She accepted that the ‘proper route’ was to go down the car park, around and up the road, ‘but everyone uses the verge’.”

Other witnesses gave evidence. Mrs Chard’s evidence as summarised by the judge was that “Despite the claimant’s accident, it is still common practice for employees to walk across the verge, as this is the quickest and most convenient way to gain access.”

Evidence was given by the employer’s Occupational Therapy Team Manager, Mr Sean O’Brien. He said that following the accident, an email was sent out:

“This is just a reminder to users of the Enterprise House car park to take particular care to use appropriate pathways when entering and leaving the car park on foot. A member of staff this morning was injured when stepping over the muddy verge that separates the access road route and the parking spaces. A cracked patella has resulted from the fall, which will require surgery.”

The judge then quoted the cross-examination of Mr O’Brien:

“Do you accept that for the people using it [that is the verge ] it represented a danger?

For those using it, yes. It is the first time I was aware of the risk. I have no recollection of ever seeing anyone cross the verge but we arrive at different times of day.

You did not apply your mind to all routes which they might take?

As far as I was concerned, there was a safe means of access.”

The judge made findings of fact:

“(1)

the verge formed part of the premises of which the defendants were occupiers; (2) at all material times, the defendants had essentially unrestricted control of the premises; (3) the verge was regularly, and indeed habitually, used by a significant number of employees, and most if not all those employees parked in the part of the car park where the claimant left her car immediately before the accident; (4) the use of the verge gave rise to a foreseeable risk of injury, as there was a tripping edge formed by the kerbstone which was approximately three inches in height; (5) no instruction was ever given not to use the verge as a walkway; (6) it was never fenced off, signed with a hoarding or otherwise closed to pedestrian traffic; (7) whilst there was an alternative walkway provided, it was longer and inconvenient (especially as it would involve longer exposure to the rain in wet weather) and there were reasonable subjective reservations as to its safety in the minds of a number of employees, for the reasons given by the witnesses who referred to road traffic hazard; (8) the circumstances and physical causes of the claimant’s fall were as described by her. She did not slip on mud, as contended for by the defendants. I am satisfied that she tripped, in the way she described, on the raised edge of the kerbstone.”

The judge then turned to the regulations on which reliance was being placed, and made the general finding, as a record of the submissions of the respondent:

“The level of infill ought to have been maintained so as to achieve and then maintain suitability. Alternatively, a solid permanent material such as concrete could have been used, as in the event it was ... The significant difference in level was the cause of the claimant’s fall. It was foreseeable.”

On the basis of those findings, the judge found breaches of regulations 5 and 12 of the 1992 Regulations, and of negligence at common law. He made a finding of 20 per cent contributory negligence against the claimant.

Before turning to the law, I mention one issue of fact which has loomed large on the hearing of this appeal. For the appellants, Miss Brown has stated that the judge’s finding was that this was a simple trip over the kerb. She submits that the state of the short and gradually sloping bank below the kerb stone had no bearing on the accident which the judge found to have occurred. In response to that, Mr Venmore has referred to the passage I have read, where the judge does refer to the verge being “rough and muddy”. He submits that, though not expressly saying so, the judge had in mind, in assessing the foreseeability of risk, that the three-inch kerb stone came at the top of a short but muddy slope. In response to that, Miss Brown has referred to the evidence of the claimant:

“And you chose to step onto a muddy sloping verge?

It was not sloping as much as it is now. It was fairly flat. It was the kerb. It was not sloping like that, just very, very slightly.”

He answered the next question: “I did not feel it was that much of a gradient.”

Regulation 5 of the 1992 Regulations provides:

Mr Venmore submits first, that the appellants accept that the place where the accident happened did come within the definition of “workplace” within Regulation 2. Mr Venmore submits that, within the meaning of Regulation 5, the relevant part of the workplace was not properly maintained so as to be in an efficient state and in efficient working order. In relation to Regulation 12, he submits that the use of this by employees who had parked in the car park and wished to gain access to the building was frequently and regularly used by the employees, and was not suitable for the purpose for which it is used. It is, submits Mr Venmore, a traffic route within the meaning of Regulation 12, and its surface was unsuitable for the use to which it was frequently put, and for which the appellant was using it when tripped.

The authorities on Regulation 12 appear to me to throw light also on the question of common law negligence. Mr Venmore realistically accepts that the test under Regulation 12, the suitability test, is in the present circumstances very similar to the test at common law as to whether sufficient care has been taken by the employers, or whether they had fallen below the standard of care which was to be expected of them as employers.

I deal with each of the requirements in Regulation 12. It is undoubtedly capable of covering a tripping hazard. Secondly, I have no doubt that there was a sufficient control of the relevant part of the premises by the appellants. Miss Brown has submitted that because the appellants were tenants of the premises, and not owners, they were bound by the terms of their lease. Clause 3.5.1 of the lease made it possible for them on their own initiative to make alterations to the premises. The Master of the Rolls has referred to clauses 3.7.1 and 3.7.2 of the lease, which remind the lessees of their responsibility to comply with statutory duties. It is, in my view, fanciful to suggest that an employer owes a lower standard of care in circumstances such as this because he is a tenant rather than an owner of the premises on which his operations are conducted. It was the appellants’ car park. It was their building which they were using for their purposes, and responsibility for ensuring a safe access between the two was theirs. There is no evidence that the landlords would have been anything other than willing to permit any of the possible remedial measures which have been advocated on behalf of the respondent. I have no doubt that the appellants were in control of the relevant workplace for the purposes of the Regulation.

The next question is whether the route taken by the respondent can be said to have been a traffic route within the meaning of the regulation. I have referred to the context of the car park and building, and the need to provide access between them. In such a situation, I would take a broad approach to the expression “traffic route”. There was evidence that employees frequently crossed this verge when going from the vehicles to the building. They crossed at different positions, one of which was the place where the respondent parked. I would be prepared to hold that the place where the accident happened came within the definition of “traffic route”. Other considerations might arise if there was a “wandering over land”, the expression used by Miss Brown. This was a situation in which any reasonably used route from the car park to the building could be said to be a traffic route within the regulation.

That leaves the question, in my view the critical one in this case, whether it was suitable for the purpose for which it was used. As I said, I regard the common law test in this situation as being very similar to that in the statute. Marks and Spencer PLC v Palmer [2001] EWCA Civ 1528 was different on its facts, but similar considerations arose. In giving judgment, Waller LJ set out the circumstances of that case. A strip by a door was 8 to 9.5 millimetres high, very much lower than the height of the kerb stone in this case. Waller LJ at paragraph 27 put the test in this way:

“The court, as it seems to me, should stand back and ask itself, by reference to the above factors as they existed before this accident took place and not with any benefit of hindsight, was this floor suitable? Was it uneven to an extent which exposed persons to risk of their health or safety? My answer to those questions would be that it was suitable and that it did not expose persons to that risk. That is the view to which, in my judgment, the recorder should have come, rather than holding the absolute liability that he did.”

Schiemann LJ concurring, stated:

In Ellis v Bristol City Council [2007] ICR 1614, Smith LJ stated at paragraph 44, having cited the judgment of Waller LJ:

“The factors will also include the likelihood of an accident occurring and the possible gravity of any injury which might occur. So, they will include the history of accidents or complaints and the gravity of injuries, if any, which have occurred. The court should then 'stand back' and decide objectively whether, in the light of those considerations, it can be said that the floor was 'suitable for the purpose for which it was used'.”

Making a similar analysis, in Taylor v Wincanton Group Limited [2009] EWCA Civ 1581, Sedley LJ stated at paragraph 21:

“As is axiomatic, one of the purposes of health and safety regulation is to protect employees from the consequences of their own inadvertence. But, against that, one has to consider the relative normality of the structure that we are concerned with”

Waller LJ, concurring, repeated the test he had set out in the Marks and Spencer case.

That relates to Regulation 12. That appears to me to be the regulation applicable in this case, particularly on the findings which the judge made, and I am prepared to make in relation to the constituent elements of that regulation. I have difficulty in admitting Regulation 5 into this framework. The case does not involve equipment, devices and systems, which are the main concern of Regulation 5. The word “workplace” in Regulation 5 has a more general application, but it would in my view be a somewhat strained definition of efficient state and efficient working order to base this tripping claim on an allegation of “inefficient state”. There was nothing wrong with the kerb stone which the judge found was the cause of this accident. It may be that Regulation 5 has a more general application, but in my judgment it is not a regulation which can be successful in this case if Regulation 12 is not. Regulation 12, headed “Conditions of Floors and Traffic Routes”, appears to me to be the relevant regulation, and in the present context Regulation 5 adds nothing to it. It would, says Miss Brown, be a back door way of seeking to obtain redress.

On behalf of the appellants, Miss Brown draws attention to the absence of any previous accidents and to the absence of complaints. These are factors to be taken into account, especially having regard to the evidence given of use of this verge as an access to the premises. She relies on the respondent’s acceptance that it was not the proper route. As a further point, Miss Brown submits that this was a ordinary kerb stone three inches high, a type of kerb stone in fact rather lower than that which one finds every day in the roads of towns and cities. It seems quite unremarkable, submits Miss Brown, and not one where an employer can be reasonably expected to foresee danger, or one in which the access was unsuitable for the purpose intended. She relies on the judge’s rejection of the notion that it was a combination of the earth and the kerb stone that caused the accident. She submits that it was the kerb stone alone, a perfectly ordinary kerb stone, which was found to be the cause. Miss Brown invited the members of the court to consider carefully the photographs of the scene, and submits that examination of them does not flag up a risk, or the need for other access. The judge, Miss Brown submits, put the duty too high.

For the respondent, Mr Venmore submits that the judge was correct to find that there was a foreseeable risk of injury at this point. He refers to the evidence that it was an accident waiting to happen, and refers to the absence of any measures taken by the appellants to deal with a risk which, he submits and the judge found, was present. A prohibition could have been put on the use of the route; the earth could have been concreted over, the step which was subsequently taken; fencing could have been provided; steps could have been inserted into the slope at this point. It is not, of course, for the respondent to say precisely what should have been done, but a consideration of possibilities may be relevant to assessing whether the employers have been in breach of their duty.

I have found far from easy the question whether there was negligence at common law and whether the appellants were in breach of Regulation 12. As I have said, I regard the extent of the duty as being similar in both allegations. I am impressed by the absence of any evidence of previous accidents or of complaints, and that what is alleged to be a hazard is a perfectly ordinary and not very high kerb stone. However, I have concluded that, first, one should take the earth with the kerb stone as the cause, and probably the judge did this, though not expressing it as clearly as he might have done. In any event, this court is prepared to do so and is able to do so on a consideration of the evidence at the trial carefully presented to us by counsel. This was not an ordinary kerb which might be faced by anyone parking a vehicle; it was a kerb at the top of a gradient, albeit a slight gradient, and where the footing would be affected by it being earth rather than solid.

I have come to the conclusion, not without hesitation, that in failing to take measures to deal with the problems presented by the slope and the kerb stone, the employers fell below the standard to be expected of them. It seems to me that, on the evidence, the action subsequently taken of the concreting over was appropriate action though one must disregard the benefit of hindsight in assessing what the position was on the day of the accident.

I make no finding as to the other measures, as to whether they would have discharged the duty, and as to whether they would have been effective. There is doubt about that, certainly in relation to instructions given by the employers.

There is no doubt that the respondent did trip and sustain an unpleasant injury. In my judgment, there was a breach of Regulation 12, in that the employers had not provided a suitable route, and there was negligence at common law, subject to the contributory negligence which the judge found.

For those reasons, I would dismiss this appeal.

I agree that the appeal should be dismissed. I think it sufficient that, for the reasons given by Pill LJ, the judge was entitled to reach the conclusion he did on common law negligence. This means, as it seems to me, that nothing ultimately turns on the strict duties under the 1992 Regulations. But I do not dissent from Pill LJ’s conclusions on the application of those regulations to the particular circumstances of this case.

I also agree that it is unfortunate that the judge decided not to hear oral submissions after the conclusion of the evidence. It is right to stress that counsel were given a lengthy period within which to make written submissions, and that they both availed themselves of that opportunity in full, so that all relevant points were put before the judge in writing before he reached a decision on the case. But the fact remains that the course taken by the judge denied him the undoubted benefit of oral expansion and elucidation of the matters covered.

I agree that this appeal should be dismissed. I would like to make three points. First, for the reasons given by Pill LJ, I consider that the judge’s decision was justified on the grounds of common law negligence. I also incline to the view that it was justified on Regulation 12, and that it was not justified on Regulation 5. However, as Richards LJ has said, it is unnecessary to decide those two points conclusively.

Secondly, there is one point in relation to the application of the Regulations which I would like to touch on. Although I agree with Pill LJ that the fact that the employer is a tenant under a lease is relevant, it does not in any way detract from the fact that Regulation 5 and Regulation 12, the two regulations in issue on this appeal, are both expressed in clear terms. In her clear and well-developed submissions, Miss Brown took the point that, because the terms of the lease under which the appellant held the premises in question precluded the carrying out of alterations in absolute terms, the appellant was not in control of the premises, at any rate for the purposes of Regulation 4, in contrast to the position of a freeholder or a tenant under a lease which contained no constraints on alterations.

I do not accept that proposition. It seems to me that Regulation 4 identifies the person responsible for compliance with regulations such as Regulations 5 and 12, and that is the person so identified who is effectively in control of the premises concerned, the definition of control being essentially contained in Regulation 4(3). To my mind, save perhaps in very unusual circumstances, a tenant under a lease is the person in control of the premises. If the tenant has entered into covenants which preclude the carrying out of works which would be requisite under the Regulations, then the provisions of Part I of the Landlord and Tenant Act 1927 may provide an answer. It may also be that, depending on the terms of the lease, the tenant could successfully contend that, notwithstanding the covenant against alterations, the works required by the Regulations could nonetheless be carried out. It is unnecessary to consider that point further.

The third point is that, in agreement with Pill and Richards LJJ, I think that it was unfortunate that in this case the judge dispensed with closing speeches, limiting the parties to written submissions. Oral argument is an essential and very valuable ingredient process in our system of litigation. It is wrong to dispense with it, where at least one of the parties objects. Written submissions are, I accept, often a useful tool for shortening, sometimes very substantially, the time taken up in closing speeches; but it seems to me that dispensing with oral submissions is a course that a court should take only when all the parties have agreed, save perhaps in exceptional circumstances. The judge, it appears from the transcript, was under great pressure, as judges often are, but it was unfortunate that he took such a course in this case.

It is only fair to add, as both Pill and Richards LJJ have done, that in this case this unfortunate decision did not cause the judge to go wrong in his analysis of the evidence and his findings of fact, and, indeed, it did not ultimately cause any prejudice to the parties, or cause the judge to reach the wrong result.

Accordingly, for the reasons given by Pill LJ, and the brief reasons given by Richards LJ and myself, this appeal is dismissed.