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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 >> Buyukardicli v Hammerson UK Properties Plc & Ors [2002] EWCA Civ 683 (1 May 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/683.html Cite as: [2002] EWCA Civ 683

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Green QC)

		Royal Courts of Justice Strand London WC2 Wednesday, 1st May 2002

1. LORD JUSTICE WARD: Lord Justice Sedley will give the first judgment.
2. LORD JUSTICE SEDLEY:This appeal comes before the court by permission of Lord Justice Auld. It is from a judgment of His Honour Judge Green QC given at the Central London County Court on 1st November 2001. The action arose out of a fall sustained by the claimant in the area outside the John Lewis store at Brent Cross on 27th May 1997. The judge found for the claimant against the first and second defendants, who were the joint occupiers. By consent he dismissed the action against the third defendant, a contractor. General damages were agreed at £28,000, loss of earnings remaining to be quantified, but the judge reduced the total award by 75 per cent for contributory negligence.
3. It is first necessary to say a word about the parties. At trial the three defendants joined in their defence. The first and second defendants, sued under the Occupiers' Liability Act, admitted that they were joint occupiers of the site. It emerged at a late stage that the third defendant (which was sued in negligence as the contractor on the footing that it might have been in occupation of the material piece of terrain) was not responsible. A witness statement of its senior project manager said that the third defendant always fenced places on which it was working and that the accident area must have been returned to the occupiers since it was unfenced. This was accepted and the third defendant was dropped at trial.
4. On the face of the appellant's notice the only application for permission to appeal was the first defendant's. Its interests of course are coextensive with those of the second defendant as joint occupier. It seems to me that there was in fact no grant of permission to appeal to the third defendant, but no point has been taken on this. The complaint about the way the third defendant's costs were dealt with was part of the notice of appeal and skeleton argument. As advanced by Mr Korn for the appellants, it is that the judge should have awarded the third defendants their costs against the claimant from August 2000 when the defences were filed. I can see no flaw in the judge's refusal to award them more of their costs than he did, namely from 27th September 2001, when the facts I have mentioned became apparent. It is true that the claimant could have started her action against the first two defendants alone and not brought in the third defendant unless the first two blamed the third, but proceedings were issued at the very end of the limitation period and did not allow that luxury. When the third defendants were sued, as the respondent's skeleton argument has spelt out to us, they sat on their hands until the last moment, putting in opaque pleadings and information about their position. The judge in my view was fully entitled to hold that it was only when the claimant had had an opportunity to consider the effect of the third defendants' evidence on their potential liability that she should have dropped them. Since by then a trial was imminent against the first and second defendants, the extra costs, one hopes, will not have been great.
5. I turn then to the situation of the first two defendants, who at trial were the only effective defendants. Brent Cross is well known as a huge and busy shopping centre. The accident occurred at the approach to the John Lewis store. This was from a tarmac car parking area, at the edge of which was a raised pavement with an ordinary kerb at its edge. What was less usual was that, opposite the shop doorway and set in the outer part of the pavement, was a roughly rectangular area of prepared soil. It was, by the date of the accident, unfenced and you could step up onto it directly from the tarmac. At this side it was almost flush with the top of the kerb. On the far side, however, as one went towards the shop door, the soil was bounded by a line of slim kerbstones standing, as the judge found, higher than the surface of the prepared soil. Oddly, although it had been photographed, it had never been measured; but the judge found, having listened to the evidence such as it was, that this bit of kerb stood about two inches proud of the soil. He also found that there was nothing to stop customers walking across this bed and no reason to suppose that some at least would not do so. So the first and second defendants as occupiers were plainly responsible, within reason, for their visitors' safety; and there was no dispute that the claimant and her husband were lawful visitors.
6. The substantive appeal issues, as tabulated in the skeleton argument, are these: first, whether the claimant tripped at all; second, if she did trip, whether the lip over which she tripped was too small to be a hazard for which the defendants are liable; and third, whether she was in any case the sole author of the accident - 100 per cent contributorily negligent, as it was put - through her failure to look where she was going.
7. It may be convenient to deal with the last of these first. The submission that there should have been a finding of 100 per cent contributory negligence cannot stand in the light of this court's recent decision in Anderson v Newham College of Further Education [2002] EWCA Civ 505. In that decision it was explained why, conceptually, 100 per cent contributory negligence does not exist. It can only arise, putting it shortly, where there is primary fault; and, where there is primary fault, what the statute permits is an allocation of blame, not a negation of it. It follows that the defendants must be in a position to submit and demonstrate that they were without fault, and it is to this that the remainder of the argument has gone.
8. There is no question, on the judge's findings, that the claimant, a tall and heavily built woman, fell and hurt herself quite badly where and when she says she did. The judge, as I have said, found that the inner kerb stood about two inches above the compacted earth. Since neither side had furnished him with measurements, he had to form the best view he could. I fail to see how he can be criticised for relying, as he felt it safe to do, on the claimant's husband's description. He said at paragraph 4 of the judgment:

"[The claimant's husband] says that after the accident, when she was lying on the ground in great pain, he looked at the northern kerb over which he says she tripped, and the difference in level between the top of the compacted earth and the top of the kerbstone was about 2 inches. He thinks in centimetres however. He told me that the difference was 5 or 6 or 7 centimetres. Using the photographs, and from those vague figures, I find that the difference was about 2 inches."

9. The photographs to which the judge refers are photographs which the claimant's husband returned and took, unaccountably omitting, however, to measure what he was photographing. Nor did the defendants, when they learnt of the claim, make any endeavour to get the contractors' drawings, for example, to help the court to estimate the height of the lip. Mr Korn's endeavour before us to challenge the finding of the judge by reference to the photographs is, with respect, hopeless. The photographs are not susceptible of measurement, but they are entirely consistent with the judge's finding, and the judge's finding is in no way inconsistent with the known fact that on the pavement side the upstand was three or four inches.
10. Next it is submitted that, even so, it was impermissible for the judge to hold that this was a hazard against which the law obliged the defendants to give their visitors reasonable protection. I disagree. It is nothing to the point to remind the court that the kerb between the tarmac and the pavement plainly was not a hazard. It was twice as high as the lip, but it was where one expects a kerb to be. The lip was in a most curious place, on the inner edge of a rectangular feature, as the judge said, "strategically placed in front of one of the busy entrances to John Lewis", and inviting use as a place of passage. If anything, the judge would have been entitled to regard it as more dangerous than a displaced paving stone, for which pedestrians at least are expected to be on the alert. He was in my judgment fully entitled to find that it was not something which enabled the claimant to be reasonably safe. It may have come as a relief in the end to Mr Korn that his proposal to move from the submission that the lip was insignificant to a submission that it was so gross that the claimant was 100 per cent contributorily negligent had to be abandoned in the light of the decision in Anderson.
11. The judge's conclusions were crystallised by him in the following form at paragraph 8 of the judgment:

"(1) The claimant tripped over the lip, which was about 2 inches between the top of the compacted earth and the top of the kerbstone. It is true that her husband was very vague as to his estimate of measurements, but his figure of between 5 and 7 centimetres is confirmed by the photographs themselves which, though not very clear, indicate a lip of about 2 inches.

(2) I accept that she caught her foot on this lip while walking forward. That was the effective cause of her falling and breaking her leg. She also fell over the kerbstone itself onto the other side. The kerbstone looks to be some 3 or 4 inches high. I think the right analysis is that the kerbstone was also causative of the accident but that the effective cause was the lip. Miss Bloom concedes that were it not for the lip the claim must fail. She does not rely on the kerbstone as it drops to the north except in the sense that it is the critical circumstance of its existence which makes the lip a danger. I agree with that analysis.

(3) The first and second defendants had known for very many months that the public were in the habit of walking across the uncompleted rough flowerbed. Indeed, the earth was compacted obviously by the feet of many walkers. I cannot quantify it more precisely than to find that many people over many months used the flowerbed as a pathway both to and from this door.

(4) This flowerbed was strategically placed right in front of these busy doors and that was the reason it was so frequently used.

(5) The appearance of the flowerbed, however, made it clear that it was only a rough temporary structure. I have no doubt that the claimant appreciated that it was not intended to be a finished access route. She may well not have thought that it was intended to be a flowerbed in due course, but it was quite obvious that it was a rough and temporary structure of some sort.

(6) She could plainly see that the earth was rough and irregular. She could plainly see that the rough earth was bounded by a perimeter of kerbstones on three sides; that is to the north, south and east. On the west, of course, it is bounded by the concrete path.

(7) I accept her evidence that she did not see the lip, but she should have done. Knowing that the structure was rough and temporary, it behove her to keep a careful lookout as to the shape, conformation and position of its boundary with the kerbstone."

12. In the light of those findings the judge went on, as he was bound to do, to find a breach of the duty of care, although with contributory negligence, if I may say so, of a high order. There was clearly more than one way in which the defendants could, without difficulty, have made the place safe.
13. This leaves what appears to be the first and main question that Mr Korn came to court to argue, namely the mechanism of injury. In the event, and probably wisely, he has left his submissions resting upon his skeleton argument. They are, in my judgment, adequately answered by the judge's own findings in paragraphs 6 and 7 of his judgment. They amount to this: that notwithstanding inconsistent accounts recorded in the medical attendance notes, the judge found that the claimant had tripped and not merely slipped over the hazard. He was fully entitled to do so. His reasoning, if I may say so, represents the realistic approach of an experienced judge to the well known fallibility of hospital records taken in casualty departments, at least where they purport to set out the patient's account of the mechanism of injury.
14. Everything in this appeal therefore comes down simply to whether the judge was entitled to make the findings of fact that he did. Mrs Bloom, for the claimant, has reminded us of Lord Hoffmann's already celebrated remark in Biogen Inc v Medeva Plc [1997] RPC 1: "The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la vérité est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."
15. I expect it will come as a surprise to Judge Green and his colleagues at Central London County Court to learn, like Molière's Monsieur Jourdain who found at an advanced age that he had been speaking prose all his life, that their daily decisions about why one Londoner or another has come a cropper inhabit this epistemological half-world; but that, on authority, is what they do. Within it, in my judgment, Judge Green's findings of fact are safe from attack and the conclusions which he has drawn from them legally impeccable.
16. I would dismiss this appeal on all counts.
17. LORD JUSTICE WARD: I agree.
Order: appeal dismissed with costs to be assessed if not agreed.