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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Darvell v Newitt [2001] EWCA Civ 958 (6 June 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/958.html Cite as: [2001] EWCA Civ 958

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COUNTY COURT
(HIS HONOUR JUDGE CHARLES HARRIS QC)

		Royal Courts of Justice Strand London WC2 Wednesday, 6th June 2001

Wednesday, 6th June 2001

1. LORD JUSTICE KAY: This is an application for permission to appeal from a judgment of His Honour Judge Charles Harris QC, given in the Oxford County Court on 12th January 2000. The claim was one made by a young girl, 11 at the time of an accident in which she suffered personal injuries at the beginning of a holiday in Antigua. The defendant was responsible for the villa. There were issues about the exact ownership of the villa but those are not raised in the appeal and requires no further reference in this judgment. The only matters that are raised by the proposed appeal relate to the judge's conclusion that the defendant was negligent.
2. The circumstances of the accident were these. On arrival at the villa the claimant and her brother hurried upstairs to explore the house and went into a bedroom. For a moment they sat on the bed. Then the claimant noticed the balcony, inviting, no doubt as the judge described it, in the bright early afternoon subtropical sun, and commanding interesting views of the beach and the sea. She therefore went towards the terrace not noticing that the window was shut. At the last minute she did notice the glint of sun on the glass and tried to stop but was unable to do so. Her recollection was that she had slid on a mat which rested on a polished tiled floor. In any event she collided with the window. The window was made of a quarter-inch plate glass not laminated or toughened, and it shattered into large sharp shards. Her right leg was cut badly and deeply lacerated. She had to be flown home and she came close to losing the injured limb. It is in those circumstances that she brought the claim for damages for the personal injuries that she had suffered.
3. The defendant in relation to the issue of negligence contended first, that the window was marked with stickers which warned of its presence. Not only did he give evidence to that effect but he called a body of evidence in support of that contention. It was rejected by the judge who concluded that there were no stickers in place. Apart from alleging that there were stickers the defendant also contended that even if there were no stickers their absence did not amount to negligence. It was that contention that the judge rejected. He concluded that taking reasonable care did require there to be stickers on this window and it is that finding by the judge that the defendant now seeks permission to appeal.
4. The matters raised by counsel contained in a helpful skeleton argument put the issues firmly before the court, and contend that the judge was not entitled to reach that conclusion. First, it is submitted that there was no breach of any safety regulations which would apply either in Antigua or in this country. Further, it is contended that there was no evidence that would have justified a conclusion that there was a universal practice in either country of applying such stickers to windows. It is contended in those circumstances and against that background that the judge really could not reach a conclusion that it was negligent to have no stickers on this door. It is further contended that the judge did not deal with important elements of the defendant's submissions; namely, the situation was one where one would anticipate there would be a door or a window, since the doorway had a lintel and a jam; there was a change in floor surface from the interior to the outside; and anyone within the room should have realised that it was closed because of the fact that the noise and the atmosphere of the garden and beach outside would have been obvious if the door had been open. In those circumstances it is suggested that the judge's ruling is one that cannot be sustained.
5. I do not accept that that argument is one that can be put before the court with any prospect that it might succeed. The issue as to whether this was negligence or not was essentially one of fact depending upon the particular circumstance of this window in this particular premises. There was evidence that when the villa had been built stickers had been in place. That suggested that it was thought to be a wise precaution in that particular building. There was, further, the evidence given by the defendant himself which included a concession that he thought it was necessary for there to be such stickers applied to the window. That evidence is a matter to which the judge specifically referred. The defendant of course was contending that because it was necessary, there were stickers in place. All of that evidence tended to enhance the view that to fail to put stickers on did amount to a breach of a duty to take reasonable care for the safety of those visiting the villa. It is submitted that if the judge's conclusion is right then that would mean that every such door, not only in Antigua, but in England also, would be required to have stickers in place or otherwise the owner of the premises would be in breach of a duty of care. Again I do not accept that that is a consequence of the judge's conclusions; nor do I consider it to be properly arguable. There are many differences between this situation and others included within that wide encompassing suggestion. For a start in Antigua the difference between the sunlight outside and that that one would expect elsewhere makes it the more likely that a window will not be seen. This particular villa would be visited by persons who were not familiar with the premises and who were staying there on their own without any full-time householder. They would, as happened here, have been likely to include children; children naturally in those circumstances would feel that they wanted to pop in and out of the villa, and the danger that somebody might do exactly what this girl did in these particular premises was far greater than one might expect in an ordinary domestic situation in this country. I therefore do not accept that the judge's conclusion has the far reaching consequences that are suggested. It was very much a finding on its own facts.
6. For those reasons it seems to me that what the court is being invited to do is to substitute its own views of the facts without hearing all the evidence for those of the judge. That is something that this court will not do.
7. I see no real prospect of an appeal succeeding and accordingly I refuse permission.
(Application refused; no order for costs).