Dawkins v Carnival Plc (t/a P & O Cruises)

This is an appeal against a judgment of Mr Recorder Wright given on 3 December 2010 at Southampton County Court. The Recorder dismissed a claim by Mrs Janet Dawkins (“the appellant”) for damages for personal injuries sustained by her on 23 November 2006 while a passenger in international waters on the P&O cruise ship “Oriana” operated by the respondents.

The claim was pleaded under the Occupiers’ Liability Act 1957 but it is common ground that it was governed by the Athens Convention on Carriage of Passengers and their Luggage by Sea (1974), incorporated into the law of England and Wales by section 183 of the Merchant Shipping Act 1995. This was “international carriage” of a passenger pursuant to a contract of carriage within the Convention. Article 3(1) of the Convention provides:

“The carrier shall be liable for the damage suffered as a result of the death of or personal injury to a passenger and the loss of or damage to luggage if the incident which caused the damage so suffered occurred in the course of the carriage and was due to the fault or neglect of the carrier or of his servants or agents acting within the scope of their employment.”

Article 3(3), having dealt with situations not relevant to the present case, provides:

“In all other cases the burden of proving fault or neglect shall lie with the claimant.”

It is accepted, for present purposes, that the tests to be applied under the Convention, including as to burden of proof, are the same as they would have been had the accident happened on premises in England and Wales. No point is taken on the defect in pleading.

When walking through the Conservatory Restaurant on the ship at about 2 pm, the appellant fell, sustaining soft tissue injuries to both knees and her wrists. The judge found, on balance of probabilities, that the appellant slipped “on some liquid, probably water, on the floor of the Conservatory”. Staff were soon assisting her. When she slipped, the appellant was passing a drinks dispensing station. The only evidence of how long the water had been there was that of fellow passengers Mr and Mrs Thomas who said that “it was not there when they got to the Conservatory, which may have been from 10 minutes to 30 minutes before the accident”. The Recorder stated, at paragraph 17, that “in theory at least, the spillage could have occurred only moments before, or several minutes before the accident.”

The Conservatory is one of the most popular and high-traffic venues on board. It is manned throughout the day and is in constant use by passengers. The accident happened near what is known as a clearing station where someone should be “permanently present”, the Recorder found.

The Recorder found, at paragraph 16:

“Nevertheless the possibility of spillage in the cafeteria, and of someone slipping on spilt liquid, are obviously foreseeable. Although a danger such as this could be expected or at least foreseen also by a passenger, nevertheless it obviously imposes on the Defendant a clear duty to operate a reasonably effective system for getting rid of spilt liquid, and minimising the danger it may cause. The fact that in the ordinary course of things an accident such as this would not normally happen clearly raises the suggestion that the accident arose from want of care by the Defendant. It will be for the Defendants to discharge an evidential burden to the effect that the accident did not happen through want of care on their part. In effect it is for the Defendants to show that the accident was not the result of any failure by them.”

At paragraph 18, the Recorder stated:

“. . . one could not expect a system of continual inspection of every part of the floor. There are bound to be occasions when liquid is spilt, specially in this area. . . . Thus there are bound to be times when there is unguarded spillage on the floor. A properly operated system must take this into account, but no system can completely prevent this.”

The respondents called evidence of their inspection system. In addition to formal weekly inspections, there was an informal daily inspection of food and beverage areas including “walking the floor monitoring cleaning and cleanliness generally”. Mr Gordon Smith stated that “spillages are inevitable but would be picked up almost instantaneously”.

Evidence was given of the training given to all crew members. The Recorder accepted that “all staff are very safety conscious and are briefed to ensure the safety of themselves and the passengers”. “We usually have significant number of staff on duty in this area to cope with the demands of the area” (Mr Smith).

The Recorder found that there was “a full contingent of staff in the Conservatory at the time of the accident”. On the daily report for the day of the accident, staff status was given as “full” and the number of staff in the Conservatory itself, as distinct from behind the scenes, was put by one witness (Mr Robson) at 15 and by Mr Smith at 24. There had only been 2 accidents there in 6 years.

No evidence was given by any member of staff present in the Conservatory on the day of the accident. That is a significant omission having regard to the number of staff claimed to have been in the area and the involvement of staff very soon after the accident.

The Recorder referred to Ward v Tesco Stores Ltd [1976] 1 WLR 810 where the claimant slipped on yoghurt on the floor of the defendants’ supermarket. There was no evidence as to how long the yoghurt had been there. The judge found for the claimant and, by a majority, this court upheld the finding. Giving the leading judgment, Lawton LJ stated, at page 814:

“Now, in this case the floor of this supermarket was under the management of the defendants and their servants. The accident was such as in the ordinary course of things does not happen if floors are kept clean and spillages are dealt with as soon as they occur. If an accident does happen because the floors are covered with spillage, then in my judgment some explanation should be forthcoming from the defendants to show that the accident did not arise from any want of care on their part; and in the absence of any explanation the judge may give judgment for the plaintiff. Such burden of proof as there is on defendants in such circumstances is evidential, not probative. The judge thought that prima facie this accident would not have happened had the defendants taken reasonable care. In my judgment he was justified in taking that view because the probabilities were that the spillage had been on the floor long enough for it to have been cleaned up by a member of the staff.”

Lawton LJ went on to say, at page 814G:

“The next question is whether the defendants by their evidence gave any explanation to show that they had taken all reasonable care.”

In relation to the first stage, Megaw LJ in Ward took a similar view, at page 815-816:

“It is for the plaintiff to show that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendants than the absence of fault; and to my mind the judge was right in taking that view of the presence of this slippery liquid on the floor of the supermarket in the circumstances of this case. . . . ”

Megaw LJ stated, at page 816B, that defendants:

“. . . could escape from liability if they could show that the accident must have happened, or even on the balance of probability would have been likely to have happened, even if there had been an existence of proper and adequate system, in relation to the circumstances, to provide for the safety of customers”.

Megaw LJ dealt with the “next question” in this way:

“But if the defendants wish to put forward such a case, it is for them to show that, on balance of probability, either by evidence or by inference from the evidence that is given or is not given, this accident would have been at least equally likely to have happened despite a proper system designed to give reasonable protection to customers.”

In Turner v Arding & Hobbs Ltd [1949] 2 All E.R. 911, (cited in Ward) a customer in a shop slipped on a piece of vegetable matter and fell. Finding for the claimant, Lord Goddard CJ, stated, at page 912D:

“I can well understand that it would be difficult to say that the defendants were negligent because something had got on to the floor which they may not have had the opportunity of sweeping up. Here, however, I think that there is a burden thrown on the defendants either of explaining how this thing got on the floor or giving me far more evidence than they have as to the state of the floor and the watch that was kept on it immediately before the accident. . . The defendants have not discharged the burden which I think is placed on them.”

Following the approach in Turner and in Ward, it is submitted on behalf of the appellant that the issue was whether the respondents had established that they took all reasonable care on the day of the accident. It was not enough to show that there was a reasonable system; the respondents had to show that it was properly implemented at the time.

A high standard of care, by way of observation and prompt action, would be expected in this part of the ship in relation to the condition of the floor. The respondents accepted that high standards were required. Many members of staff were present in the Conservatory to assist passengers. The expectation was that spillages would be picked up almost instantaneously. There was, in my view, an evidential burden upon the respondents to show how long the water had been on the floor. On balance of probability, it can be inferred that it was a passenger rather than a member of staff who was responsible for the spillage. If, through another passenger’s lack of care, it had been there only for a very short time, the respondents may escape liability. If, on the other hand, it had been there for a significant period of time, they were negligent in failing to have taken remedial action.

The Recorder stated his conclusion on the second stage at paragraph 35:

“In my judgment on the weight of the evidence shows that the Defendants did all that would be required of them in establishing a proper system for ensuring the safety of their passengers, and that the presence of the water does not on the facts of this case show that they failed in their duty that day. The proper inference in all the circumstances is that even with the best possible safeguards an accident such as this is bound to happen occasionally. I do not consider that it can be inferred that the accident occurred through want of care by the Defendants who have in my view discharged insofar as it is possible to do so their evidential burden of showing no lack of care.”

The Recorder followed the two stage approach in Ward. He found, at paragraph 16, already cited, that there was a prima facie case against the respondents which imposed an evidential burden on them. He described the safety system operated by the respondents. Though not spelt out in this way, the Recorder appears to have inferred, at paragraph 35, first that the system was operating effectively at the time of the accident and, secondly, that, since the system was operating effectively, the water could not have been on the floor for a significant time.

Mr Palmer referred to an article signed A.T. Denning (by the time of publication Denning J) entitled “Presumptions and Burdens” (1945 61 LQR 379). Dealing with evidential burdens, A.T. Denning stated:

“The party on whom it rests must call evidence or take the consequences, which might not necessarily be adverse : for the place where the burden eventually comes to rest does not necessarily decide the issue : because at the end of the case the Court has to decide as a matter of fact whether the inference should be drawn or not. These presumptions and burdens are therefore provisional only. It is a mistake to raise these provisional presumptions into propositions having the force of law. They are recognised by the law but their force depends on ordinary good sense rather than on law.”

Mr Palmer also relied on the statement of Lord Pearson in Henderson v Henry E Jenkins [1970] AC 282 at page 301D:

“In an action for negligence the plaintiff must allege, and has the burden of proving, that the accident was caused by negligence on the part of the defendants. That is the issue throughout the trial, and in giving judgment at the end of the trial the judge has to decide whether he is satisfied on a balance of probabilities that the accident was caused by negligence on the part of the defendants, and if he is not so satisfied the plaintiff’s action fails. The formal burden of proof does not shift.”

This case has the following features:

I approach the case in stages:

For the respondents, Mr Palmer QC submitted that the Recorder was entitled to reach the conclusion he did. Though not spelt out precisely in these terms, the Recorder drew, and was entitled to draw, the inference from the evidence of a system of work that it was operating at the material time. That being so, the liquid could not have been on the floor for a significant time and the claim failed. It was not fatal to the defence that no evidence was called from those working in the Conservatory at or around the time of the accident. In the absence of evidence that the water had been on the floor for a significant period of time, the appellant had not discharged the burden on her of proving negligence, it was submitted.

On the face of it, the presence of the liquid was more consistent with fault on the part of the respondents than with absence of fault on their part. The area was under their close control and liquid was present on the floor.

I accept that if the probability is of such contemporaneity between the spillage and the accident that remedial action could not reasonably be taken during the gap between them, the claim would fail. The Recorder did not make a finding as to time but, if the defendants could demonstrate such contemporaneity, the claim would fail.

The absence of evidence from one or more of the many members of staff claimed to be present in the Conservatory at the material time is remarkable. The explanation for the lack of evidence from a member or members of staff was, the Recorder found, that the defendants “could not establish who it was.” In my judgment, in the absence of evidence from members of staff claimed to be implementing the system, the judge was not entitled to infer from the existence of a system that the spillage which led to the fall occurred only a few seconds, or a very short time, before the accident.

The claim succeeds on the evidence in this case. There is nothing to suggest such closeness in time between the spillage and the accident as would, at a place where close observation was required, exclude liability. In the absence of evidence to the contrary, I can conclude only that on a balance of probabilities the water had been there for longer than the very brief period which, in this particular place, would have excused the defendants from taking remedial action before the accident.

I would allow this appeal and remit the case to the County Court for the assessment of damages. The court has not accepted the submission on behalf of the appellant that the case must be heard by a different judge. The Recorder has heard evidence relevant to damages. However, the case can be heard by a different judge if listing requirements make that a more suitable course.

I agree.

I also agree.