Swain v Geoffrey Osborne Ltd & Anor

The issue before the court is the question of whether liability for the serious ankle injury which the Claimant sustained on 16 December 2004 has been established against either or both Defendants.

If it is so established, issues arise as between the Defendants about their respective responsibilities. By agreement that issue has effectively been put to one side whilst the principal issue is determined.

If primary liability is established, the question of the contributory negligence of the Claimant falls to be considered.

The location of the accident was just outside what was then a site being cleared for building purposes in Hills Farm Lane, Horsham, Sussex. The site was to be developed as a housing estate. The overall site had comprised two areas one of which (and which constituted the main area) had previously been a sewage farm owned by the local water authority (Southern Water Limited) and the other which was owned by Horsham District Council. The development was what is commonly called the development of a “brown field” site. Ultimately, a substantial residential estate was constructed on the site, some of the homes being constructed by George Wimpey Ltd and others by the First Defendant for Southern Housing Group.

Mr Paul Ensch, a Director of the First Defendant, told me that the site had a somewhat controversial history locally and that there was evidence that, consistent with its principal use as a sewage farm until it was decommissioned in 1972, its drainage system generated significant volumes of very nearly pure methane. He described it as an extremely contaminated site that aroused considerable concerns amongst local residents. The planning history had been somewhat chequered, but the First Defendant eventually obtained permission for the site to be developed.

The first stage of the project was land decontamination ("remediation") which required a great deal of material on the site (which included raw sewage) - in the region of 60,000 cubic metres of material overall - to be removed and replaced with new soil. As will be apparent from what I have already said, it was a controversial and sensitive proposal in the local community and the local planning authority (Horsham District Council) imposed stringent requirements in respect of the “remediation” works including, as I have indicated, clearing the whole site of contaminated soil and refilling it with clean clay. The highways authority, West Sussex County Council, had an interest in the development because, when completed, the new road within the site would become adopted by the authority and would be maintainable at the public expense. Equally, it would have been concerned with any impact of the development on the surrounding road and footpath network.

The period during which the “remediation” works were carried out was also referred to colloquially as the “muck away” period. I will return to that later.

The boundaries of the actual site were clearly defined, but inevitably the works carried out within the confines of the site could potentially spill over into surrounding areas. It is effectively that consequence that it is suggested underlies the circumstances of this case.

The First Defendant was the main contractor for the works being carried out on the site and the Second Defendant was the ground works subcontractor. As I have indicated, an issue arises potentially between them if the Claimant establishes that the accident in which he was involved occurred as the result of slipping in the way he alleges.

The accident occurred on the footway on the north side of the road on the opposite side to what was then the entrance to the site. (Now that the site has been fully developed, that entrance forms the mouth of the estate road that leads into the estate. That road is now called Deer Way.)

The Claimant was an HGV lorry driver employed by A & A Transport who, on the day of the accident, had driven their articulated lorry to the site to collect a load of shuttering. The lorry was of a well-recognised type with a 36' semi-trailer at the rear of the driver’s continental cab.

The manoeuvre of the lorry that led to the Claimant getting out of the cab and injuring himself was the attempt by the Claimant to reverse it into the entrance to the site. The entrance was, in his judgment, too tight to negotiate from a starting position on the same side of the road as the entrance because of the presence of bollards in the centre of the road near to the entrance and some cones in the entrance itself. Accordingly, he turned the lorry around and thus approached the entrance from the other direction. He positioned the lorry diagonally across the road with the rear of the trailer near to the entrance and the cab at the front of the lorry facing oncoming traffic in the opposite lane. In other words, the cab and part of the trailer was in the offside lane and the rear part of the trailer was in and diagonally across the nearside lane. His evidence was that the cab was near and parallel to the kerbstone of the adjacent footpath on the side of the road furthest from the entrance. The manoeuvre would require reversing the lorry further back across the nearside carriageway into the site entrance. Plainly such a manoeuvre would require some interruption of traffic flow while it was carried out. However, it was the sort of operation that most road users will be familiar with seeing from time to time during which they would wait whilst it was being executed. It is obviously carried out more effectively and efficiently if someone outside the vehicle is stopping the traffic and possibly helping direct the lorry.

The way he intended to carry out this manoeuvre and the position of the vehicle derives, of course, from the Claimant’s own evidence. However, it is substantially confirmed by other witnesses who came to the scene and from a sketch of the scene prepared by Mr Michael Jewel, the First Defendant’s Project Manager for this development, some while later. He was told of the accident, came to the scene and, amongst other things, took some photographs of the Claimant where he had fallen and where he remained until the ambulance arrived.

Having set out the background and the essential scene I should turn to the way in which the accident occurred. It should be noted at the outset that the only witness to what occurred was the Claimant himself. By the very nature of the way his lorry was parked immediately before he fell and injured himself, no-one working on the site would have been able to see what happened. No other witness has been called to say that he or she saw what occurred.

Leaving aside for the moment notes made by healthcare professionals (including the medical experts in this case) about how the Claimant said the accident occurred (to which I will return later), I will record the way the Claimant has described those circumstances through his legal advisers and to me in his oral evidence. In a protocol letter addressed to the 1^st Defendant dated 13 September 2005 (in other words, about 9 months after the accident), the following appeared:

“Mr Swain had difficulty manoeuvring the lorry on to the site from the road so, in order to check his position and how he might continue, he descended from his cab and began to walk round to the front of the vehicle to look along the nearside. The Claimant was wearing boots with a substantial tread. As the Claimant passed the driver’s door, both feet slipped on mud and he fell, causing serious injury to his left ankle. The Claimant remained lying on the ground for at least 20 minutes and was eventually tended to by paramedics to take him to Horsham hospital.

The area of the site entrance/exit, the carriageway outside the site and the pavement on the opposite side of the road to the building site, was covered with mud and water which had accumulated as a result of being deposited by the wheels of construction site vehicles which had driven on muddy ground. The deposited mud was then dispersed further by passing vehicles.

On his arrival to the site, the Claimant saw a trail of mud which stretched from the building site, across the adjacent path and up the carriageway. The mud which had accumulated on the carriageway was also dispersed on to the adjacent pathways as a result of vehicles driving up and down the carriageway over the deposited mud.”

For reasons which have not been explained, matters did not proceed with any particular expedition thereafter and proceedings were not commenced until the Claim Form was issued on 12 December 2007, just before the 3-year limitation period was due to expire. Nonetheless, the Particulars of Claim contained essentially the same account as that set out in the protocol letter. The relevant paragraphs were in these terms:

“3.

The Claimant passed the Site entrance on his left and stopped the lorry on the opposite side of the road in order to reverse into it. Two attempts to do so with guidance from a man from the Site … were unsuccessful and the man went back to the Site having apparently been called back by a colleague. The Claimant decided to get out and look himself to see how to manoeuvre the lorry through the Site entrance.

“4.

The Claimant descended from the cab on to the footway alongside the carriageway and began to walk past the open door towards the front of the lorry. As he did so, he slipped on the footway and fell to the ground, twisting his left ankle and thereby sustaining injury.

5.

The cause of the Claimant slipping was that mud and/other material which had turned into mud had been deposited on the road by vehicles leaving the Site and had been dispersed by traffic so that the footway as well as the carriageway was contaminated and made slippery by mud.”

Although I have not seen any correspondence following the protocol letter, it appears that the Claimant’s account was disputed before the proceedings were commenced because when he was first seen by Mr Graham Keene, Consultant Orthopaedic Surgeon, on 23 August 2007, Mr Keene noted in his report that “[there] is some dispute as to how the accident occurred and the precise mechanism of injury.” Mr Keene was instructed to comment specifically on the mechanism of injury. I will return to his view about that later (see paragraph 43 et seq).

What had been raised on behalf of the insurers for the Defendants was the suggestion that the Claimant had jumped down from the cab of his lorry and had injured himself on landing. This assertion was, it seems, based at that stage primarily on the contents of certain medical notes which recorded the Claimant as saying that he jumped out of a lorry (see paragraphs 29-30 below).

At all events, the Claimant’s case was as set out in the Particulars of Claim and when the Defences were served in April and May 2008 the assertion that he “jumped” was made and this issue was thus joined in the formal sense.

The next occasion on which the Claimant was required to give his account of what occurred was in his witness statement prepared for the purposes of these proceedings. That was dated 5 November 2008 although it seems clear that there was an earlier version in identical terms because Mr Keene had such a statement when he saw the Claimant in August 2007 and he (Mr Keene) sets out the circumstances in very much the same language as that recorded below. At all events, in his witness statement of 5 November 2008 the Claimant repeated the account of the two unsuccessful attempts to reverse into the entrance of the site and of his getting out of the cab himself. He gave slightly more detail about that than previously, but it was essentially the same account. He continued thus:

“I decided to get out of the cab to assess the nearside so that I could see what I needed to do to manoeuvre the trailer through the gates. I applied the brakes, opened the driver’s door and began to descend the steps which are located below the driver’s door. The HGV I was driving had a large continental cab which has about five steps which lead up to the driver’s area. The cab has a very large steering wheel which protrudes over your legs when sitting down so you have to be careful when getting out because it can get in the way. I put my right hand on the steering wheel in order to twist myself around to the right so that my back was facing outside the cab, I then placed my left hand on the handrail which is situated outside towards the back end of the driver’s door, I then positioned my feet on the steps and placed my right hand on the handrail towards the front end of the cab. I climbed down the steps with my hands on the handrails and my body facing the cab of the HGV as I climbed down. As I got to the bottom step I placed my foot down on to the path, I then began to walk around the door towards the front of the cab. The door was open, with its edge overhanging the path. As I walked passed the door my foot slipped almost causing me to do the splits, I tried to compensate with my other foot to regain my balance but as I did that my ankle twisted, my feet flew up in the air and I landed on the path. My left leg was the last part of my body to hit the floor. As I slipped I saw my left ankle point in almost completely the opposite direction to which it should have been. I landed in the path with my head level with the centre of the cab and my feet in the path towards the front of the cab. I tried to get up but saw that my left foot had twisted right around so I shouted for help to the workmen behind the fence.

I did not jump from the cab. At the time of the accident I weighed 17.5 stone so I always used to use the steps to climb down. It would have been very difficult to jump from the cab on to the path because I am so big, the driver’s door would have obstructed me if I had jumped and also because the steps are high up, about five feet from the ground.”

He adopted this evidence as his evidence-in-chief. He affirmed that the floor of the cab was about 5 feet from the ground level and there were four steps, he said. When challenged by Mr Gee about the circumstances of the accident, he said that he went down the four steps of the cab, stepped back on to the edge of the footpath and was turning himself towards the open door of the cab to walk around it. He said he took two steps before he slipped. When pressed again about this and when it was suggested to him that the accident happened when he was putting his foot down, he rejected this suggestion emphatically saying that he slipped after taking two steps to go around the outside of the open carriage door. Mr Tudor-Evans put the matters more strongly to him and suggested that, because he was in a hurry and stressed, he jumped out of the cab. The Claimant’s response was “No, you will have to do better than that.” In his closing submissions, Mr Tudor-Evans suggested that the Claimant was aggressive and somewhat contemptuous in his response to him. That may have been so, but there may have been a reason for that to which I will return later (see paragraph 58). It is not necessarily something that undermines his essential credibility concerning the circumstances of the accident.

One thing seems to me to be clear: if one leaves out of the account any other evidence in the case, the Claimant has been broadly consistent from start to finish about the way in which the accident happened. He arrived at the surface of the pavement safe and intact, took a couple of steps as he tried to go passed the open cab door and then slipped on the muddy surface.

Before moving to the other evidence which, it is said by the Defendants, undermines his credibility about the circumstances of the accident, there is one piece of objective evidence to which I should refer. Mr Jewel’s photographs show clearly where the Claimant ended up following his fall. There is no doubt that he sustained a serious ankle injury which would have rendered it impossible for him to move his body. Whilst I have had no evidence from those who are shown on the photographs assisting him, it seems to me unlikely in the extreme that any attempt would have been made to move him from where he fell. Although this was not an obvious case of a suspected spinal injury, few people who would have gone to the assistance of someone who had fallen in the way the Claimant did would have taken the risk of moving that person until a doctor or ambulance crew had arrived. If that is a legitimate inference, and I can seen no reason for not drawing it, the position of the Claimant as shown on the photographs is essentially where he ended up after he slipped and fell.

What the photographs reveal is that the whole of the Claimant’s body after it fell was well within the confines of the pavement (in other words, no part of it was straddling the kerb) and it was essentially parallel to the parallel edges of the pavement. If the Claimant fell as he descended from the cab of the lorry (whether by jumping or otherwise) which was stopped very close to the kerb, either facing inwards towards the cab or facing outwards, I find it difficult to see how he would or could have ended up in the position shown in the photographs. It seems to be much more likely that he came down from the cab facing inwards towards the cab as he said he did and then turned to his right, either completely or substantially, before falling. That would be consistent with his account of what occurred.

I prefaced the foregoing discussion by leaving out of account reference to notes by others of what the Claimant has said about the circumstances in which he injured himself. As will be apparent, the position taken by the Defendants (namely, that he jumped from his cab and injured himself in the process) appears to have been derived initially from notes in the Claimant’s hospital records that suggests that this is what occurred. It is right to say that one employee of the 2^nd Defendant, Mr Sean Haylor, would apparently have said that he asked the Claimant, when he was lying on the ground, what had happened and that the reply was that he had “jumped out of the cab … and hurt [his] ankle”. I do not know when Mr Haylor first said this, but it appears in a witness statement dated 10 September 2008, nearly 4 years after the accident. Sadly, Mr Haylor, who was aged only 48, died within a matter of months of making that statement and it is not been possible to see or hear him give this evidence orally. For reasons that I will appear later (see paragraphs 66-72), I do not think that I can attach any significant weight to the statement. The statement contains at least one important paragraph that I am unable to regard as reliable and it has caused me to question its overall reliability.

Turning then to the notes made by various healthcare personnel, I will record them as they appear in the records before referring to the submissions and arguments based upon them.

The first, and thus the most contemporaneous, record was made by Mr Anthony Ellis, an Ambulance Technician with the Sussex Ambulance Service. He and a colleague responded to a call at 10.58 and arrived at the scene at 11.11. Given that it would have taken a little while for the message to get through from the site (via Mr Jewel) to the ambulance service and then to the ambulance team, this does suggest that the accident did occur around about 10.45 or thereabouts.

The time when the ambulance departed from the scene does not appear to have been recorded on the form that Mr Ellis completed, but it seems likely that it would have taken 20-30 minutes or so for the Claimant to be stabilised and got into the ambulance in a safe fashion. Mr Ellis was clear in his evidence that he completed the form at the scene of the accident and the final entry is at 11.41 when the administration of some saline is recorded. Other records indicate that the Claimant was admitted to the Accident and Emergency Department at Horsham Hospital at 12.07. At all events, at some point during the period that Mr Ellis was at the scene of the accident with the Claimant Mr Ellis recorded the Claimant as saying the following about how the accident happened:

“Stepping down from lorry cab 2 steps. Slipped on muddy surface (effectively doing splits).”

Next in the sequence of records is one timed somewhere between 12.20 and 1.15 and signed by “A. Williams ENP”. (‘ENP’ presumably stands for Emergency Nurse Practitioner.) That note records the history of the presenting complaint (coming from the patient) as follows:

“Jumped off back of lorry and did the splits with L ankle twisting, pain and unable to [weight bear], heard crack.”

At some stage later that day the Claimant was seen by the Orthopaedic Senior House Officer who recorded the mechanism of the injury as follows:

“Jumped from a lorry and also twisted the ankle on landing”

He transferred to a hospital nearer to his home (the Lister Hospital, Stevenage) a couple of days later and the first record (on 18 December) appears to be as follows:

“…fell from [his/the] lorry, slipped on pavement”

“[patient] had a fall from lorry, slipped on the pavement”

All those notes were, of course, made in the relatively immediate aftermath of the accident and before litigation was being contemplated. Subject to their reliability and how they should be interpreted, they are plainly far more compelling than anything said for the first time some while after the event.

The interpretation of notes such as these is, of course, a matter for the court. Whilst I would expect to see an expert witness in a case such as this record the contents of notes of this nature (particularly where there is an issue about the mechanism of injury), I would not expect to see reliance placed upon the notes to support what is otherwise an expert opinion based upon matters within the expertise of the expert.

As I have indicated, Mr Keene appears to have recorded the Claimant’s account of the accident from his witness statement and he also noted the records to which I have referred. Mr Derek Boston, the Consultant Orthopaedic Surgeon who has reported for the Defendants, had Mr Keene’s report when he saw the Claimant on 3 September 2008. He also invited the Claimant to tell him what had happened and recorded it as follows:

“26.

He told me that he got out of his cab. He told me that this was 6 feet above ground level. He told me he climbed down the steps; he went around the door of the lorry on the path. His right leg went forwards, the left leg twisted. He told me that he fell; he “flipped over onto the side”.

27.

He lay on the ground under the door of the lorry. He told me that a banksman found him. He told me that there is apparently a statement from a banksman stating that he “jumped out of the cab”.

28.

He told me that he stayed on the ground until paramedics and an ambulance arrived. He told me that he told the paramedics that he “jumped”. He told me that he does not deny this however, he told me that he did not mean that he jumped from a height. He told me that the statement which he made was not true.”

I leave to one side, for the moment, the other observations apparently made by the Claimant to Mr Boston, but the essential account he gave about how he came to be injured is substantially as I have recorded it above (see paragraphs 15-22 above).

There are two entries in the records that use the word “jumped”. The ENP recorded this, but also recorded that the jump was “from the back of the lorry”. I do not think there is any basis upon which it could be said that the Claimant jumped from the back of the lorry – no one has suggested it. However, taken literally the entry could suggest that as the Claimant landed from whatever jump he undertook he “did the splits” and twisted his ankle. There is, of course, no record of slipping on a muddy surface in this particular record. The same observations can be made of the record of the Senior House Officer a little later that day. The Claimant does say that, perhaps with an element of overstatement, that he was as “high as a kite” on pain-killers subsequently. As I have said, I am sure that that is an overstatement, but nonetheless he will have been in considerable pain and was doubtless very distracted as the day progressed. To what extent one should pay a great deal of attention to these records for this particular purpose is doubtful. So far as the entry at the Lister Hospital is concerned, there is no reference to a “jump” merely a “fall” from the lorry. No one suggests that he fell from the lorry: it was either some kind of jump or he got down to the ground safely and then slipped. That record does, of course, use the expression “slipped on the pavement”.

By way of an ex post facto rationalisation of the use of the word “jump” the Claimant does not deny that he may have used the word (and indeed accepts that he did so) on occasions, but he did so in the colloquial sense that many people do when they say that they “jumped” out of the car or “jumped” on to a bus. He says that he frequently used the expression “I jumped from the lorry” simply as a way of describing getting out of the cab. I do not find anything intrinsically unlikely about that as an explanation for the use of the word from time to time.

The one person who recorded something that, on one interpretation, is very similar to the Claimant’s essential account of what happened was Mr Ellis. He does not in fact record the word “jump” at all. Mr Gee and Mr Tudor-Evans have been at pains to argue that his note is ambiguous, but I am bound to say that at times the argument about the meaning of this, doubtless quickly written, note was verging on the way a statute or a provision in a contract is interpreted. Notwithstanding the absence of the word “jump” it has been contended that it could be interpreted in that way. Mr Gee asks why mention the word “lorry” at all unless it was relevant to the accident? I cannot accept that that has any validity at all. It would be wholly artificial when giving an account in the circumstances in which the Claimant found himself not to mention getting down from the lorry a second or two before slipping. Mr Gee also argues that the words “stepping down” suggest that what the Claimant was trying to convey to Mr Ellis was that the accident occurred when he was “stepping down” from the lorry rather than afterwards. Again, I think that that takes the semantic analysis to a level not warranted by the circumstances. Mr Gee did not really endeavour to address or answer the question of the meaning of the words “two steps” in the note.

Subject to Mr Ellis’ own view of what he meant by the note (to which I will refer shortly), it is largely a matter of impression. When I first read the note it seemed to me to mean that after getting down from the cab and taking two steps the Claimant slipped on the muddy surface, effectively doing the splits. That interpretation did not seem to me to be doing any significant violence to what was written down and it seemed also to make sense in the context of where the Claimant ended up (see paragraphs 23-24 above). Apart from indicating during the course of the evidence that I could see one interpretation of the note that was consistent with the Claimant’s account, I did not articulate these thoughts openly. It is possible that Mr Ellis heard me say this whilst waiting to give evidence, but when he came to do so, he appeared to state quite openly that this was indeed essentially his interpretation of his own note.

In his witness statement of 6 November 2007 Mr Ellis said that when he spoke to the Claimant he said that “he had slipped on mud and had injured his ankle and that he was in intense pain.” He merely said that he recorded the Claimant’s version of events on the form. He said that whilst he was present at the scene no-one commented that the Claimant jumped out of the lorry, otherwise he would have recorded it.

Mr Gee strives valiantly to suggest that the note is ambiguous. For my part, unless there was clear and compelling evidence that showed that the Claimant could not have sustained the injury in the way that he said it occurred, I would not have said that this note was ambiguous. However, one would not treat it as supporting a finding of fact in a case such as this purely in its own right and on the basis of how it could be interpreted. The important matter is to look at all the evidence together to see where it leads on the balance of probabilities. The note does refer to some part of a mechanism of the Claimant’s injury being attributable to slipping on the muddy surface. That may constitute an important record given the way in which the Defendants’ cases have been advanced.

I did comment during the closing arguments that this case has assumed the dimensions of a “state trial” despite the relative simplicity of the accident that is alleged to have occurred. Two, doubtless very busy, Consultant Orthopaedic Surgeons spent several hours in the witness box debating whether the injuries sustained by the Claimant were more likely to have been caused by a jump than a slip. Since they have been asked to address this issue previously and to discuss it, it is something about which they have had to address their minds for some hours. The actual act of falling or slipping and the infliction of the injury to the Claimant must have been over in a second or two, but every feature of it has been picked over in considerable detail over several hours. For reasons I will express in a sentence or two later, there seems to me an obvious answer to all this, but out of deference to the views of the experts and to the arguments I have heard I will endeavour to review the issue as briefly as I can against that somewhat analytical background.

Mr Keene, in what I consider to have been a balanced and well argued report, concluded thus:

“On the balance of probabilities, considering the fracture pattern and extent of swelling, this fracture is more likely to have been consistent with a relatively low energy rotational injury caused by slipping on a wet muddy surface, rather than a high energy fracture with axial loading sustained by jumping. However, I accept it is still possible the fracture was sustained by jumping from the cab and then slipping on a wet muddy surface sustaining an injury which otherwise would not have occurred by jumping down on to a firm dry surface.”

Mr Keene had not sought to rely on any of the contemporaneous records for reaching the view that he did, although he referred to those records in the historical narrative set out in the report. He relied merely upon the injuries he saw depicted on the X-rays and the physical processes that could have taken place to produce those injuries. Mr Boston, in his report prepared subsequent to that of Mr Keene, came to a different conclusion. He put the matter in this way:

“This, in my opinion, on the balance of probability, is not the type of injury which would be expected following a simple slipping injury…

I will then consider the nature of the injury. The tibia moved forwards on the talus. There was an associated fracture of the posterior malleolus. This is at the “back” of the talus. There were associated fractures at each side of the ankle. It is my opinion that, on the balance of probability, this appearance would have developed following a jump from a height.”

Mr Boston supported that second conclusion by reference to statements he understood to have been made by the banksman (who had been assisting the Claimant) and a paramedic (neither of which he had seen) and by reference to the clinical notes to which I referred in paragraphs 29-31 above which he described as having been “prepared entirely independently … following interview with the Claimant.” He concluded his analysis with this proposition: “As such, I am unable to agree with the proposed mechanism suggested by Mr Keene.”

I am bound to say that, as it stood, I found that report far less persuasive than that of Mr Keene. It gave the impression of relying upon material that was not really within the expert’s province.

When they discussed the issue of the mechanism on the telephone on 10 December 2008, the position (based upon their expertise rather than upon other evidence) was summarised thus:

“Both surgeons agreed it was difficult in retrospect to define how the fracture occurred. Mr Boston considered that the mechanism of the injury was compatible with a “jumping” action. Mr Keene considered that the mechanism of the injury was compatible with a rotational action. Both surgeons have discussed the mechanism in respective reports.”

As I understand Mr Boston’s report, and indeed his subsequent letter of 31 March 2010, it was that, in his view, the forward movement of the tibia on the foot or talus which indicated that there had been a jump from a height. He explained this in his letter by saying that the foot would have remained in position on landing with the leg continuing to move forwards. He said that this was not consistent with a “simple rotational injury on a pavement without impact.” He did, however, say that he could not exclude the possibility of a dislocation caused by a rotational injury but said that it was “extremely unlikely”. Having reviewed the X-rays of 16 December 2004 (which he had seen when he prepared his initial report), he noted some comminution that he had not noted before. He said that this suggested “on balance significant impact forces were applied to the limb” compatible with “jumping from the cab steps”. He said that the X-rays showed no evidence of rotation.

Mr Keene responded to that in a yet further letter of 26 April where he suggested that the degree of comminution was not very significant and not indicative of a “high energy” injury. He accepted that there was X-ray evidence of only slight rotation of the tibia on the ankle joint. His conclusion was expressed in this way:

“I believe it remains very difficult to determine the mechanism of injury from the x-ray appearances of alone, as the fracture pattern could be consistent with either a jumping injury or a rotational injury. However, the level of the fracture of the fibula being above the syndesmosis is more consistent with a rotational injury pattern.”

The syndesmosis is the fibrous joint immediately above the ankle between the tibia and fibula which holds the ankle mortise tightly together.

Mr Keene remained clearly of the view during his evidence that the X-ray images did not really assist in deciding on the mechanism of injury. (Indeed Mr Boston was very cautious in what he said about the X-rays. He said that “the early X-rays reflect the final position of the fractures before surgery and at the time of the accident on balance” (my emphasis).) Nonetheless, Mr Keene accepted that he would have expected to see a greater degree of rotation on the X-rays if there had been a pure rotation injury. That did not, as I understood the evidence, negate the view that there could not have been a pure rotation injury without there being significant evidence of such an injury on the X-rays, but merely that he would have expected to see more. One explanation for the minimal radiological evidence was that the fractures were unstable and the position of the foot could have changed between the sustaining of the rotational injury and the taking of the X-ray in hospital after the Claimant had fallen (not necessarily, and almost certainly not, because of any deliberate correction of the deformity by the ambulance crew), had been transferred to hospital and his ankle had been splinted. However, whatever occurred during this period, the emphasis on the word pure in relation to the rotational injury is, in my view, important for reasons I will mention shortly.

Mr Keene accepted that there probably was some impact element to the injury because of backward angulation of the fracture of the distal tibia. The inference from this is that at some point in the very sudden incident there must have been a force moving the leg forwards on the foot and ankle. That would not have negated a rotational injury, but there would have to be some explanation for the impact injury. I will return to this shortly, but it is at this point that there appears to be a significant divergence of view between Mr Keene and Mr Boston.

The description of what the Claimant believes happened in the fall was picked over in fine detail. The account that was subject to scrutiny was that contained in his witness statement which I quoted in paragraph 20 above. His overall description of what happened, particularly of his left foot hitting the ground, was described by in his oral evidence Mr Boston as "very, very, very unlikely".

I cannot help but observe that this view, expressed in the very strong terms in which it was both in his evidence and the letter of 31 March 2010 (see paragraph 48 above), must be contrasted with the way that Mr Boston expressed himself in his report (when he had all the same information available to him) quoted in paragraph 44 above where he said that “on the balance of probability, [the X-ray] appearance would have developed following a jump from a height” and in the joint statement of the experts where he said that “the mechanism of the injury was compatible with a “jumping” action” (paragraph 47 above). What he did not say in either was that, because of the X-ray appearances, the pattern of injury was highly unlikely to be compatible with the account given by the Claimant. In other words, his view seems to have hardened over the period since his report and the joint discussions.

Mr Boston also produced for the first time during his evidence some material off the Internet (from, I hasten to say, an entirely respectable and legitimate source) to support his view which had never been shown to Mr Keene during his cross-examination and had not been the subject of discussion between them. Whilst this was done without objection from Mr Greenbourne and no suggestion of an “ambush” was made, it is not the way this kind of debate should be carried out. I would, for my part, have been prepared to ignore this part of the evidence, but I consider, on analysis, it takes the issue of the mechanism of the accident no further.

I regret to say that I got the impression that Mr Boston was in this case inclined to take a position that advanced the Defendants’ case as to how the accident occurred rather than, as I felt Mr Keene did, of putting forward both sides of the argument in a detached fashion. To the extent that I had to express a preference for the evidence of either, my preference would be for Mr Keene.

Having said that, I remain of the view that the prolonged debate has not really taken me much further forward. They had agreed in the joint statement that “it was difficult in retrospect to define how the fracture occurred.” If I had heard nothing from either, I am quite certain my conclusion would have been that, if the evidence supported a slipping accident, a heavy man (the Claimant was 17.5 stone at the time) fell very awkwardly onto a hard pavement and sustained the injuries that he did by some combination of the forces to which his body was exposed. It would not have been necessary to examine the minutiae of the incident or to try to re-create it in slow motion. However, I would have concluded, given his size and the unexpected nature of the accident, that it was neither a simple nor a pure slip in the sense that he just slipped and fell onto his back or bottom. Mr Keene said in his re-examination that there was a “very complex vector of forces” in play which involved a complex process of a combined rotation injury and a force at an angle applied across the ankle. That seems to me to sum up what happened here. The Claimant’s attempt to describe in detail precisely what happened as he slipped and fell is understandable and laudable, but it can only go so far as indeed can the expert analysis.

Mr Greenbourne makes the strong point that if the Claimant jumped from the lorry and injured himself in some way in that process, he has been misleading everyone about what happened from within a very short while of injuring himself and has maintained the deception ever since. I accept that he was a rather truculent witness, that there are some inconsistencies in what he has said on other, more peripheral, issues and that during his evidence he said one or two things that looked as if he was coming up with a convenient answer without really addressing whether it was a valid answer or not. However, cautious though one must be about a witness who gives evidence in that way, I did not consider that it dented his credibility on the central issue.

It has been no part in my task to make an assessment of the effects upon the Claimant of his injury: that would be for another day if liability is established. However, I have seen what he says about it in his witness statement and, of course, I have seen what Mr Keene and Mr Boston say on the basis of their examinations and interviews. He has taken the consequences of the injury badly. For an otherwise fit and active man aged 39 at the time of the accident (who had to rely on his physical fitness to maintain his employment, his role as a father and husband and his leisure activities) to be significantly disabled is a very significant matter. Anyone who practises, or who has practised in this field, will recognise this scenario as a familiar one. He says in his witness statement that he has become aggressive and is easily upset. If, as I think is likely to be the case, he has been telling the truth about how the accident occurred, hearing experts and barristers suggesting to him that, in effect, he has not been telling the truth will not have made him any less aggressive and any less easily upset – indeed quite the converse.

Obviously, if there had been no evidence of any mud in the vicinity upon which he might have slipped, the scenario he has presented would simply not have been open to him. However, for reasons upon which I will enlarge shortly, there is evidence to that effect which adds to his credibility.

I conclude, therefore, that his injuries were sustained in broadly the way he said. I have throughout had difficulty in envisaging what kind of “jump” the Defendants suggest that the Claimant engaged in. Obviously, if he jumped directly from the platform of his cab, either facing inwards or outwards as he did so, would have been a foolhardy thing to do and I simply cannot accept that the Claimant, no matter what hurry he may have been in, would have done that. If he “jumped” down from the bottom or penultimate step, but still holding on to the handrails, I cannot, as I have already said, see how he could have ended up where he did on the footway. For my part, and for reasons which will be apparent from what I have already said, I do not think that I have to go further than to say that, having got down from the cab safely and intact, he turned to his right, took a step or two and as he was endeavouring to walk passed the open cab door he slipped and fell awkwardly, effectively doing the splits, and in the process suffered a serious injury to his left ankle. I would add, should it be relevant, that I do consider that he was performing this movement quite quickly because he perceived it to be urgent not to hold up the traffic for any longer than absolutely necessary. That may have contributed not merely to the fall itself, but also to the awkwardness of the fall.

Whilst I have reached that conclusion, it does not, of course, necessarily mean that he establishes liability against either of both Defendants and I must turn to the state of the pavement, whether it represented an unreasonable risk to someone walking upon it and, if so, which party was responsible for it.

A crucial question, of course, is whether there was mud on the surface of the pavement at the material time.

The assertion that there was mud on the pavement or footway was, of course, made in the protocol letter and in the Particulars of Claim in the way I have recorded in paragraphs 15-16 above.

The First Defendant’s Defence asserted that where the accident occurred the area was not “contaminated in any material way by mud”. It was asserted positively that the photographs taken by Mr Jewel “show no material deposits of mud”. The Second Defendant denied that the footway was “muddy or significantly muddy” or that it was “slippery or hazardous”.

We do know, of course, that from the outset the Claimant ascribed his fall to slipping on the “muddy surface” because that was what Mr Ellis recorded (see paragraph 28 above). In his witness statement, Mr Ellis said that he noticed “that a stretch of the carriageway and the footpath opposite the entrance to the building site was covered in a thin layer of emulsified mud and that the ground was wet as it had been raining the night before.” He went on to say that he “got the impression that the mud located opposite the building site had come from vehicles entering and leaving the construction site as [he] did not notice mud further along the road.” He went on to say that he remembered his shoes being covered with a thin film of mud after he left the site. It does not appear that the photographs were ever drawn to his attention.

What Mr Ellis said is at considerable odds with what the late Mr Haylor said in his witness statement. I think I should quote it in full:

“21.

I can confirm, categorically so, that the pavement which he was lying upon and also the immediate carriageway was completely free from mud. I understand that [the Claimant] claims that the carriageway opposite the site was extremely dirty as a result of vehicles tracking/dropping mud from their wheels from the site and leaving deposits on the main carriageway.

22.

I can confirm that this was entirely untrue.

23.

The tarmac on the carriageway and on the pavement was black. It was brand new. There was no muck or mud whatsoever.”

Mr Haylor then went on to say this:

“I have recently been provided with copy photographs taken minutes following the accident showing Mr Swain lying on the pavement being attended to by two Geoffrey Osborne Limited operatives. The photographs are attached to my statement. I consider that the photographs clearly show that the pavement was in excellent condition there being absolutely no mud present other than the footprints from up to 9-10 operatives who went to Mr Swain’s aid. It is worth pointing out that we had all been working on the site and therefore the soles of our boots would have contained mud hence the footprints.”

That paragraph appears in identical form in the witness statements of Mr David Shorey (the surveyor employed by the 2^nd Defendant) and Mr Philip Durant (the 2^nd Defendant’s Site Manager). Mr Durant in his witness statement had gone further and said this:

“27.

I can confirm again, categorically so, that at the time of the incident there was, on a worst case basis, only a tiny amount of mud immediately outside the site entrance but certainly on the opposite sides of the carriageway and pavement there was absolutely no mud on the surface whatsoever.

28.

I am aware that Mr Swain claims that he slipped on mud in this area and I fail to see how he could have done this as there was no mud present.”

It emerged when he gave his evidence that Mr Shorey had not been present on or near the site on the day in question and, accordingly, his evidence could not help as to what was on the surface of the footway that day. Given that to have been the case, I am surprised that he was permitted to sign up to a witness statement containing the paragraph to which I have referred above.

Having read those statements in advance of the hearing, I had assumed that the case to be presented on behalf of the Defendants was that the footway had originally been entirely clear of anything that could remotely be described as mud, or a muddy substance, and that anything that looked like it on Mr Jewel’s photographs had arrived there only because of the 9-10 people from the site who had walked there, effectively bringing it on the soles of their boots.

The reason for saying that is that, unless my eyes were playing tricks, it seemed to me to be clear that the photographs demonstrated a potentially slippery surface comprising of a watery substance with obvious earth or mud within it. It was, by common consent, a wet day and there was, to my mind, clearly to be seen on the surface of the pavement (in both directions beyond where the Claimant is seen lying) a sheen caused by a wet surface, the sheen being smudged by obvious thin muddy deposits. I would add that it was also obvious from the photographs that on that part of the footway which runs down from level with the site entrance to where the Claimant is lying there are footprints within this muddy surface. Indeed it is possible that there are similar footprints to the other side of where the Claimant is lying, although this is less clear because of the way the light on the photographs appears. I might also add that the photographs seem to me to demonstrate quite clearly that vehicles with mud on their wheels had either gone into or exited from the site entrance.

As I have said, if it was to be the case that all the deposits seen on the footway found their way there by reason of a large number of people walking on the footway with muddy boots, I could at least have understood the argument even if, as it turned out, the suggestion of “9-10 operatives” was a clear over-statement. However, that did not really emerge as the case advanced.

One of the witnesses called on behalf of the 1^st Defendant was Mrs Janet Knight, the Development Control Officer of the West Sussex County Council, who had responsibility for the highways aspects of the development. Her witness statement indicated that she had inspected the site and the surrounding roads on the morning of the accident and that there was no sign of any muddy layer anywhere. The note in her diary included the words “Road clean”. She supplemented her original statement with a further statement on 21 October 2009 in which she asserted specifically that she walked along the part of the footway on which the accident happened and that it was “damp but not slippery at all”. She did not refer to the photographs at all in either statement. When she gave her evidence orally she said that the footpath was “in perfect order”.

That, as it stood, lent support to my perception that the case to be presented on behalf of both Defendants was that, whatever the photographs may have shown, the surface appearance was caused by muddy boots after the accident occurred.

However, when confronted by the photographs in cross-examination by Mr Greenbourne, Mrs Knight said that what they showed was “no more than liquid water that is coloured or muddy”. It was, she said, as shown on the photographs when she walked there that morning without the footprints. She said that had she seen the footway and the condition it was in as shown on the photographs (i.e. with the footprints), she would not have been concerned.

I have to say that I found all this evidence very difficult to accept. The photographs seemed to me to illustrate a potentially slippery surface, the slipperiness being caused by muddy deposits within the surface water. I do find it impossible to accept that Mrs Knight would have been content with the condition of the footway if, as was suggested, many schoolchildren would have been walking upon it only an hour or so previously. At all events, whether that comment is justified or not, Mrs Knight’s evidence puts to rest any perception that I had that everything that looks to me to be muddy on the photographs got there on the boots of 9-10 men who went to see the Claimant after his accident.

This all adds credence to the Claimant’s account that he slipped on a “muddy surface”.

Was that surface slippery? Obviously, if what the Claimant says is correct, the answer is “yes”. Mrs Knight says that it was not slippery. For reasons which will already be apparent, I do have some reservations about her evidence, but I think I can accept that, if one walked carefully on the surface, it may have been possible to avoid slipping even though it, or at least parts of it, were slippery. Everyday experience shows that slippery surfaces can be negotiated safely, but often only with extreme care. To some extent, that is borne out also by the evidence of the others (including Mr Ellis) who went to the scene after the accident. None of them slipped, but they were doubtless walking there with particular care given what had happened. Mr Ellis said that he was “treading carefully”. I do not think that this evidence results in the conclusion that the footway was not potentially slippery, at least in places.

Any suggestion that the mud came from anywhere other than the site seems to me to be fanciful. Mr Gee floated the idea that mud from the grassy area beyond the footway might have found its way through the feet of passing schoolchildren on to the footway. Whilst I acknowledge the possibility, it is simply too speculative to say that this would have contributed significantly to the fairly expansive area of mud as I perceive the photographs to show it. Furthermore, there is the evidence on the photographs which demonstrates smears on the road surface of what appears to be the same substance as appears on the footway surface. In my view, it is clear that whatever appears on the footway surface came from within the site through the medium of vehicles leaving it. The photographs do support what the Claimant said, namely, that the entrance was a tight one. That meant that the larger vehicles leaving the site and turning left would probably have to swing out into the offside carriageway to effect a turn before joining the correct carriageway. What appear in one of the photographs to be wheel tracks on the road surface appear to demonstrate this manoeuvre. Vehicles turning right would have to turn across to that carriageway in any event. All this provides support for the Claimant’s case that mud from within the site found its way into the location where his accident took place.

Should that have occurred? This can be answered shortly given the vigour with which the Defendants contest the suggestion that it was truly mud on the footway. The answer is “No”. However, the question is whether the presence of this slippery substance on the footway at the time of the Claimant’s accident represented a breach of the obligation on the part of both Defendants to take reasonable steps to prevent an unreasonable risk of injury.

The evidence demonstrates that the remediation (or muck-away) period ended in about the middle of November 2004. Up until 10 November those responsible for the remediation part of the works (a company known as EDS) had a very large wheel-wash system in place to ensure that lorries left the site with their wheels clean. On 10 November it was removed so that the area of land upon which it had been placed during the remediation works could itself be remediated. EDS left the site when this was done and the 2^nd Defendant then assumed full responsibility for the ground-works that continued. I will turn to the arrangements for endeavouring to prevent mud from “escaping” from the site from that time on shortly, but it is to be noted that the footway where the Claimant fell had itself been completed only a couple of days or so before his accident. To that extent, whatever arrangements there had been in place prior to then had not of themselves been directed on a regular basis towards keeping that particular footway clear of mud.

The wheel-washer was not replaced. It is not the Claimant’s case that this of itself was negligent. It is, however, said that other measures should have been taken to ensure that material from the site was not deposited on the highway and the adjacent footway. In the Outline Opening for the Claimant Mr Greenbourne contended that any adequate system “would have involved at the very least the hosing of wheels of every vehicle before it left the site, followed by checking the highway immediately after it had gone to ensure that the road and footways were clean and, if they were not, cleaning them.” As he observed by reference to the pleadings and the witness statements, neither Defendant contended that this was the system at this time. Essentially, the case was that the road was checked about three times a day and a mechanical sweeper was used towards the end of the working day to clear up the highway. Mr Greenbourne suggested that such a system, even if implemented rigorously, was not reasonably sufficient.

It is, of course, right to observe that once the remediation phase was completed, there would be considerably fewer vehicle movements in and out of the site and, to that extent, the likelihood of the generation of mud deposits would be correspondingly less. Nonetheless, it was not contended by the Defendants that there was no risk of this occurring which is why the arrangements to which I have already referred were put in place. Mr Moore, the Contracts Manager for the 1^st Defendant, said clearly in cross-examination that it was not a case that, once the muck-away was finished, there were not enough vehicle movements to be fussed about the matter. However, he did acknowledge, as I have indicated, that the number of vehicle movements was drastically reduced.

It is correct to say, as Mr Greenbourne observed in his closing submissions, that there is nothing in any of the witness statements about any on-site vehicle cleaning or wheel-washing after the removal of the wheel-washer. Mr Moore did say in a supplemental witness statement made in September 2009 (some 5 years after the events) that he “believed” the 2^nd Defendant “used a handheld jet wash if needed”, but he did not speak of first-hand knowledge of this. Nonetheless, when he gave his oral evidence he said that he saw it happen from time to time. None of the 2^nd Defendant’s witnesses mention it in their witness statements, but Mr Durant and Mr Shorey referred to the portable jet wash when they gave their oral evidence. Mr Durant also spoke for the first time of arrangements made for another road-sweeper in addition to the one that came towards the end of the day. This sweeper came from the 2^nd Defendant’s depot in Crawley (about 6 miles away) each morning and, if not available later in the day, he (Mr Durant) called Kent Sweepers if he needed them.

It seems to me that Mr Greenbourne was entitled to criticise the way this evidence came out. It gave the appearance of closing up a few loopholes mentioned in his Opening. I do not, however, think I can reject it entirely for that reason and I accept that both (the additional sweeper and the jet wash) were available in the ways suggested, but I think that they would have been mentioned much earlier in these proceedings and in a much higher profile fashion had they truly formed a regular and consistent feature of the measures undertaken at the site either to prevent mud escaping on to the highway (and associated footway) or to remove it if it did. In the light of my findings below, I do not consider either was utilised before the Claimant sustained his accident on the day in question.

Much is made by the Defendants of the lack of complaint about mud on the highway in the period between the end of the remediation works and the accident. That may be so but, as I have already observed, the footway concerned was completed only a day or so before the accident and the clear inference open to me, which I do indeed draw, is that the system in place for ensuring that mud did not escape from the site had not been sufficiently directed to the surface of the footway before the accident. I am unable to accept that it was in a safe condition at the time of the accident and the reason it was not was because mud deposits had been allowed to get on to it and to stay there.

In my judgment, therefore, the Claimant has established that he slipped on a surface that gave rise to an unreasonable risk of slipping, that unreasonable risk having arisen from the failure of the system in place adequately to ensure that the footway was kept clear of mud. I would ascribe that primarily to the failure to ensure that wheels were washed before any lorry left the site (something that is, in my view, borne out by the tracks seen on the road surface in the photographs) and then, secondarily, to a failure to check the situation effectively thereafter. Notwithstanding Mrs Knight’s evidence, I am unable to accept that the footway was in a satisfactory condition on the day of the accident.

Subject to the issue of contributory negligence (see paragraphs 91-93 below), the question arises as to whether both Defendants are liable in negligence for this or whether responsibility lies only with the 2^nd Defendant. The 2^nd Defendant was the party with day to day responsibility for the operations on site, although the 1^st Defendant had an overarching supervisory responsibility and Mr Jewel, of course, was there at all times.

I do not doubt that the 1^st Defendant substantially discharged its responsibility by contracting with the 2^nd Defendant to undertake the implementation of safety measures: the 2^nd Defendant was a reputable contractor with which the 1^st Defendant had been involved on previous occasions. The question is whether that was enough in the circumstances.

Since my conclusion involves a finding that the steps taken to prevent mud getting onto the road and the footway were inadequate on the day in question, which itself was probably a reflection of the fact that less attention was paid to the need to do so after the remediation period had ended, I consider that the 1^st Defendant must bear some measure of responsibility for not ensuring that the 2^nd Defendant put in place and implemented a satisfactory system in that post-remediation period. The responsibility derives from the 1^st Defendant’s acknowledged continuing supervisory role. I do not think that I am called upon to apportion responsibility as between them at this stage and the contractual arrangements between them may have to be considered. However, in so far as the issue of responsibility towards the Claimant is concerned, I would merely say that the 2^nd Defendant, with day-to-day responsibility for the works on site, would be likely to have to bear the greater proportion of responsibility. At all events, if issues arise from this they can be addressed in due course.

A slipping accident is often an “all or nothing” case so far as liability is concerned. Mr Greenbourne submits that if the Defendants are found not to have met the standard of care required in the circumstances, there is no scope for a finding of contributory negligence. The issue is whether he was to some extent the author of his own misfortune by not taking particular care when he got to the footway level. It is an issue to be judged by an objective standard.

I do not think I can accept Mr Greenbourne’s submission in the circumstances of this case. Whilst I am inclined to think that the Claimant’s story of seeing lumps of mud the size of a football is an exaggeration put forward for the reasons reflected in paragraph 58 above, his account does involve an admission that he was aware of an apparently muddy surface in the vicinity. Indeed Mrs Knight’s own evidence confirms that she saw what he would have seen on the footway and in the roadway. It was a very wet morning and it seems to me that, whilst his desire to be hasty in what he was doing was understandable subjectively, looking at the matter objectively he was obliged to take particular care in walking around the open cab door given the surface onto which he alighted and should have taken it a little more slowly.

In order to reflect this element of responsibility for what occurred, whilst I think that the lion’s share of responsibility lies with the Defendants, I consider that a reduction of the damages by 25% would fairly reflect the Claimant’s share.

Accordingly, there will be judgment for the Claimant for 75% of the damages to be assessed. Any other issues can either be dealt with by way of written submissions or at a further oral hearing if necessary.

I have mentioned once or twice in the judgment the "state trial" dimension the case has assumed. It seems to me that this is almost certainly because no-one associated with this acutely difficult and sensitive development has wanted to admit that anything went wrong.  On the evidence before me, there is absolutely no basis for thinking that in virtually every important respect the development did not go according to the meticulously laid plans.  But as in the case of a driver with an unblemished driving record who, in a moment of momentary inattention, is responsible for injuring someone, the law holds the consequences to have been caused negligently. I consider that something analogous to this took place in this case.