Neutral Citation Number: [2004] EWCA Civ 985
Case No: B3/2004/0184
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
(MR. RECORDER ALLEN QC.)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29/07/2004
Before :

LORD JUSTICE MANCE
LORD JUSTICE WALL
and
MR. JUSTICE BUCKLEY
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Between :

	HOME OFFICE	Appellant/
Respondent	
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	LOWLES	Respondent/Appellant	

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Ashley Serr (instructed by The Treasury Solicitor) for the Appellant/Respondent
James Murphy (instructed by Thompsons, Leeds) for the Respondent/Appellant

Hearing date : 7 July 2004
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Judgment
Lord Justice Mance:

1.	This is an appeal by the Home Office with the permission of Mr Recorder Allen QC from his judgment dated 20th January 2004 and order dated 20th January and amended 27th March 2004. The Recorder gave judgment for the claimant, Mrs Lowles, against the Home Office on the issue of liability for personal injury allegedly sustained on 13th March 2000, but held Mrs Lowles 50% contributorily negligent. Mrs Lowles cross-appeals in respect of the latter determination by permission of Longmore LJ.
2.	Mrs Lowles was from 27th January 2000 employed by the Home Office as an instructional officer at Armley Prison. Normally, she entered the prison through the main gate, but, when that gate was being used to collect or return prisoners, staff and others entering the prison were directed to a side entrance which involved using a covered ramp up to the entrance to the “Rapiscan” portacabin inside which security procedures were conducted. Mrs Lowles had used this entrance twice prior to 13th March 2000. At the top of the covered ramp, the entrance of the portacabin consisted of two doors - the outer being kept open when this entrance was in use, while the inner (in which was a window) was kept closed. An officer insider the portacabin would keep a look out and open the inner door for visitors.
3.	The portacabin was a temporary structure, installed in 1990 and in fact removed in 2002. Between the outer and inner doors of the entrance to it from the ramp there was an unmarked 2 inch step up to the level of the portacabin floor. This was noticed on a risk assessment undertaken by P.O. Foster on 30th July 1996, and he recommended the placement of “A warning sign re-step on outside of Rapiscan entrance”. A brightly coloured red notice was then placed above the window with the words in prominent capitals: “PLEASE MIND THE STEP”. This was not the only notice on the inner door in 2000. Under the window another prominent notice “STAFF” would direct the attention of staff to use this door when the main entrance was unavailable. Beneath that notice, was a detailed list of prison regulations.  On the back of the outer door (which opened to the left of the inner door) were further notices, the one on top apparently warning that staff may be searched on entering or leaving the prison, the other below saying in bold capitals: “WELCOME TO HMP LEEDS”. Subsequent to 1996, there was further risk assessments in 2000 and, before the temporary Portacabin and entrance were reconstructed, in 2002, which made no further comment on any risk attaching to the entrance.
4.	Mrs Lowles’s case was that no notice warning of the step was present on 13th March, that both doors were open, that an officer (P.O. Thorne) was standing outside the portacabin entrance and shouted to her to come this way, that she therefore approached that entrance but that she tripped on the step, fell forward and despite grabbing P.O. Thorne’s sweater hurt herself. Most of this the Recorder rejected. He found, relying on P.O. Thorne’s evidence, that the inner door was shut and that he was not standing outside it, that Mrs Lowles approached the ramp in the company of another employee and that they were engaged in conversation, that, when they got within a short distance of the inner door, it was opened by Mr Thorne to allow them access, and that it was in these circumstances that Mrs Lowles’s foot caught against the threshhold and she fell, making contact with the ground despite Mr Thorne’s attempt to break her fall.
5.	The Recorder further found that the warning sign was present on the two previous occasions when Mrs Lowles had used this entrance. He said that
“Given the position and prominence of that warning sign, I am satisfied that she would have seen that warning sign. She would have appreciated the warning it carried and she would, in consequence, have been aware of the raised threshold and of the need to appreciate the risk it might pose”.
Likewise:
“38. …. the warning sign was clearly visible to Mrs Lowles as she approached the door ….”
- that is on 13th March 2000 (before P.O. Thorne opened it); and:
“39. …. (3) When Mrs Lowles used the rapid scan entrance, she was fully aware of the step, by reason of her previous use of that entrance. Her previous sight of the warning sign and she actually seeing the warning sign as she approached the inner door on 13th March 2000 [sic]”
Some improvement of this ungrammatical passage ought, probably, to be made by assuming that the Recorder meant a comma, instead of the full-stop (after the word “entrance”) in its middle. Later in his judgment in the context of his findings of contributory negligence, the Recorder said that:
“70. …. She was aware of the step, its position and she was aware of the need to take care. She failed to do so because she was talking to another person when walking towards the entrance door.
….
73. ….She was not concentrating. She was told to take care, and despite the fact that she was aware of the existence of the step, the warning of the defendant, clearly displayed in the sign, was not acted upon.”
The Recorder’s statements that Mrs Lowles actually saw the warning sign as she approached the inner door and was aware of the step and the need to take care must be viewed in the light of the finding that she was not concentrating. As both counsel were, I think, inclined to accept during submissions, the Recorder must have meant that the sign was clearly visible, but (because she was not concentrating) Mrs Lowles did not take in or remember its meaning, and that she was generally aware of the step but again (because she was not concentrating) she forgot about it at that instant.
6.	The Recorder also found, on the basis of the Home Office’s evidence, that hundreds of people used this entrance every week, and thousands had done so since the entrance was installed, without any tripping occurring which resulted in there being sufficient concern to lead to any report to the prison authorities; and that such people would include visitors having varying degrees of mobility, varying footwear and varying degrees of attention. However, he identified four particular factors as relevant, viz (1) that the 2 inch step nevertheless posed a “substantial risk of tripping”, (2) that it was at the top of a ramp where one would not necessarily expect there to be a step, (3) that a pedestrian’s attention would be drawn to the window, in anticipation of being seen by an officer with responsibility for opening the door, and (4) that the step would not be as visibly prominent to a pedestrian as might appear in the photographs before him. He also recorded that he had heard no evidence to suggest that it was not reasonably practicable, in one way or another, to bring the surface at the end of the ramp flush with the interior floor of the portacabin, so avoiding or removing any step.
7.	On the basis of his findings, the Recorder held that liability had been established under regulations 12(1) and (3) of the Workplace (Health, Safety and Welfare) Regulations 1992 SI No. 3004 as well as for common law negligence. The relevant regulations read:
“2	Interpretation
(1)	In these Regulations, unless the context otherwise requires-
…..
“workplace” means, subject to paragraph (2), any premises or part of premises which are not domestic premises and are made available to any person as a place of work, and includes –

(a)  any place within the premises to which such person has access while at work; and

(b)  any room, lobby, corridor, staircase, road or other place used as a means of access to or egress from that place of work or where facilities are provided for use in connection with the place of work other than a public road;
(2) 	…..
(3) 	Any requirement that anything done or provided in pursuance of these Regulations shall be suitable shall be construed to include a requirement that it is suitable for any person in respect of whom such thing is so done or provided.

…..

12.  Conditions of floors and traffic routes
(1) 	Every floor in a workplace and the surface of every traffic route in a workplace shall be of a construction such that the floor or surface of the traffic route is suitable for the purpose for which it is used.
(2)  Without prejudice to the generality of paragraph (1), the requirements in that paragraph shall include requirements that – 
(a)  the floor, or surface of the traffic route, shall have no hole or slope, or be uneven or slippery so as, in each case, to expose any person to a risk to his health or safety; and
(b)  every such floor shall have effective means of drainage where necessary.
(3)	So far as is reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall.
(4)	In considering whether for the purposes of paragraph (2)(a) a hole or slope exposes any person to a risk to his health or safety –
(a)  no account shall be taken of a hole where adequate measures have been taken to prevent a person falling; and
(b)  account shall be taken of any handrail provided in connection with any slope.
(5)	Suitable and sufficient handrails and, if appropriate, guards shall be provided on all traffic routes which are staircases except in circumstances in which a handrail cannot be provided without obstructing the traffic route.”
8.	These regulations were introduced pursuant to Directive 89/654/EEC and came into force with effect from 1st January 1996. They have been considered in this court in Marks and Spencer plc v. Palmer [2001] EWCA 1528. In that case the recorder had said that, once he was satisfied that the claimant (a shopper carrying some heavy bags) had been on a traffic route, had come into contact with a weather strip (proud of the floor at an exit door to the extent of some 8 to 9.5 mm high) and had in consequence fallen and injured herself, it followed “as night follows day” that the traffic route was not suitable for the purpose for which it was used.  The court disapproved this approach. Waller and Schiemann LJJ considered that regulations 12(1) and (2) should be read together, and that suitability required to be examined from a health and safety viewpoint (paragraphs 16, 19 and 31). Waller LJ said that the court should therefore consider whether the floor had been constructed in such a way as to expose any person to a risk to his health and safety (paragraphs 19-20) and should have regard to the extent of any risk and its likely consequences (paragraph 25) as well as to the nature of any persons exposed to it (paragraph 26), before standing back and asking itself “by reference to such factors as they existed before this accident took place, and not with any benefit of hindsight, was this floor suitable?” (paragraph 27). Schiemann LJ pointed out that context was everything, that the case concerned a shop exit which would be used by many people with varying degrees of physical mobility, but that slight rises in surface levels occurred everywhere (paragraph 33).
9.	In that case, the relevant factors included on the one hand the fact that someone tripping over the strip might fall (as the claimant did) down stairs immediately outside the exit and on the other hand the fact that the strip was only 8 to 9.5 mm high, that it was obvious (and indeed the claimant knew of it) and that there had been no complaint despite the number of exits that had taken place (paragraph 25). The court concluded that the floor was suitable or did not fall “within the concept of constituting a risk to health and safety as used in this regulation (paragraphs 27 and 35).
10.	Counsel in Marks and Spencer suggested in argument (see paragraph 18) that if any regulation could apply to the strip it was only regulation 12(3). The court rejected that submission. Before us, it was however submitted on the one hand that a step could not constitute an obstruction at all and on the other that it could and that, if it did, then questions of suitability or risk did not arise (except when considering a defendant’s suggestion that it was not “reasonably practicable” to obviate an obstruction). I do not agree with either submission. First, too much significance should not, I think, be attached to the precise phrasing and grammar of somewhat imperfectly drafted regulations (cf Schiemann LJ’s comment on regulation 12(2) in paragraph 31 of Marks and Spencer). Secondly, and more importantly, it seems to me in any event appropriate to read regulation 12(3) as a whole; and, thirdly, even if one focuses solely on the words “shall be kept free from obstructions ….. which may cause a person to slip, trip or fall”, their effect is to require a similar judgment, as to the nature and extent of any physical feature and of any consequential risk presented by it in its context, to that required under regulations 12(1) and (2).
11.	I turn to the proper appellate approach to the facts of this case. In Marks and Spencer there was an error of law in the recorder’s approach, which required this court (unless it felt it necessary to order a re-trial) to form its own judgment on the facts. Indeed, Schiemann LJ recorded that it had been agreed that, if the Recorder had approached the matter in the wrong way, the court there should substitute its own judgment (paragraph 36). Before us, it was submitted by counsel for the Home Office, Mr Serr, that the Recorder in the present case had also erred in principle or took into account irrelevant matters, in regarding the 2 inch step as a “substantial risk” and/or as viewing the second, third and fourth factors identified in paragraph 6 above as relevant. All these factors were negatived, in Mr Serr’s submission, by the presence of the warning sign. Alternatively, he submitted that the Recorder was simply and plainly wrong in his assessment of suitability. In putting the appeal on these alternative bases, counsel was reflecting the proper approach in this court, as stated in Assicurazioni Generali SpA v. Arab Insurance Group [2002] EWCA 1642; [2003] 1 WLR 577.
12.	In my view, it is not possible to detect any of the errors of principle which counsel suggested in the Recorder’s judgment. The Recorder identified the four particular factors stated in paragraph 6 above as “indicative of risk to pedestrians”. Immediately after this, he went on to identify as three “contrary factors”: (a) the use of the entrance by thousands of people prior and subsequent to 13th March 2000 without any reported mishap, (b) the prominent and clear sign, visible to Mrs Lowles and others approaching the door and (c) Mrs Lowles’s use of the entrance on two previous occasions, making her aware of the threshold. He then said that “I have to make an assessment, taking into consideration all these factors”, and, doing so, he said:
“I have come to the conclusion that the threshold did expose Mrs Lowles to a risk to her health and safety, of such a degree that the surface of the floor was not suitable for the purpose for which it was being used. It is the depth or height (more accurately) of the threshold or step, above the surface of the floor, when taken together with its position in relation to the walkway, which, in my judgment, are crucial in this case. The presence of the warning sign did not discharge the burden imposed by the regulations, or relieve the defendant from liability for breach of the regulation. I therefore find there was breach of Regulation 12(1).”
13.	In my view, this was an assessment which was open to the Recorder and which he was well placed to reach on the evidence that he heard. I do not consider that we can or should in this court interfere with it. The ramp was the means of bridging two different levels, but it did not do so completely. Instead, there was at the prison entrance at its top, at a point where attention might be diverted to gaining an officer’s attention through the window, a step up of unusual intermediate height. I recognise that the seriousness of the injury likely in the case of a fall would not appear to have equated with that in Marks and Spencer (where there were steps to fall down). But here the step up was of a different nature and height and in a different context (at the top of the ramp) to the small weather strip at the exit door in Marks and Spencer. I also recognise that internal risk assessments in 1996, 2000 and again 2002 accepted the step as suitable and safe, subject to the presence of the notice. If one assumes that they were, as they should have been, undertaken by suitably experienced officers, such assessments are relevant but it cannot be and has not been suggested that they could be determinative.
14.	In my view it could also have been relevant under regulation 12(1) for the Recorder to consider whether there was any good reason for having or maintaining the threshold and whether (in any event) there was any further precaution (e.g. by way of yellow and black marking tape) which could have been taken to highlight it for the attention of those using the entrance. The claim form included specific criticisms in this connection, which the Home Office in its defence did no more than deny and in relation to which it called no evidence. Before us, Mr Serr also accepted that it would have been for the Home Office to show some good reason why the step needed to be there, or could not have been avoided, removed, abridged by a further ramp or, at the least, highlighted. The Recorder later in his judgment concluded that there was nothing to show that it would not have been reasonably practicable to avoid or remove the threshold and it would clearly also have been easy to introduce marking tape, so it could not have assisted the Home Office if the Recorder had addressed himself to these aspects in the context of regulation 12(1). 
15.	The Recorder approached regulation 12(3) by saying simply that he was satisfied that the threshold constituted an obstruction, and that it was therefore for the Home Office to satisfy him that it was not reasonably practicable to avoid or remove the threshold, which it had not attempted to do. I consider, as I have said, that the question whether there was an obstruction which “may” cause a person to slip, trip or fall is one which itself involves a balancing of relevant factors relating to the nature and extent of any risk for persons using the floor or traffic route. But the Recorder had already considered such factors in making his assessment under regulation 12(1), and in the light of that assessment I do not think that he can, on the facts of this case, be criticised for proceeding straightaway to a conclusion that there was a relevant obstruction for the purposes of regulation 12(3). I do not see any reason why the unexpected threshold, constituting a step of unusual intermediate height at the top of a ramp, for which there was no apparent reason, should not in law be regarded as an obstruction in the floor or the surface of the traffic route. Before us, Mr Serr for the Home Office suggested, apparently for the first time in the case, that it could be seen from the photographs that there was good reason for the step up, since the outer door extended downwards below the bottom of the inner door and closed against the step. I am not sure that this is clear from the photographs, and, even if it were, it would raise the question whether the outer door needed to close against, rather than on top of a step or of so high a step. Anyway the point is one of fact which was not raised or investigated below and cannot now be raised in this court. 
16.	As to common law negligence, the Recorder held that, in all these circumstances, there was foreseeability of injury and a duty of care, which was not sufficiently discharged by the notice. Again, it seems to me that this was a conclusion which was open to him in all the circumstances and with which this court should not interfere.
17.	I turn to the issue of contributory negligence. On the one hand, the Home Office (while accepting that a finding of 100% contributory negligence could not be appropriate) submits that 50% was too low and contends for 75%. On the other hand, Mrs Lowles contends that there should have been no finding of contributory negligence or that 50% should be substantially reduced – the submission below being that any percentage should not exceed 15%. Again, it was for the Recorder to form a judgment on these issues, and, unless he erred in principle, or in the factors that he took or failed to take into account, or was plainly wrong, we should not interfere.
18.	Mr Murphy for Mrs Lowles urged that the Recorder’s finding that Mrs Lowles was aware of the notice and threshold as a result of her use of the entrance on two previous occasions was contrary to her uncontradicted (though not unchallenged) evidence, and that his apparent finding that she was also aware of the notice on 13th March 2000 as she approached the entrance was also unsustainable. As to the former, it was, I consider, well open to the Recorder, on the evidence which he heard about the entrance, to make the finding which I have set out in paragraph 5 above to the effect that, given its position and prominence, she would have seen the warning sign, and would have appreciated the warning it carried and have been, in consequence, aware of the raised threshold and of the need to appreciate the risk it might pose. As to his apparent finding regarding 13th March 2000, again he was entitled to conclude that the door was shut as she approached and the warning clearly visible. When he spoke of her actually seeing the sign on that occasion, he must, as I have said, have meant seeing it without taking in or remembering the contents, because she was (as he found) talking to someone else and not concentrating on what she was doing. 
19.	Mr Serr contended that Mrs Lowles’s fault must in these circumstances be regarded as overwhelming and merited at least a finding of at least 75% contributory fault.  On the other hand, it is not too surprising to find people arriving for work deep in conversation with fellow employees or other visitors, and not paying full attention or not reading even the most prominent of notices on one of two visible doors which were in fact quite “busy” with notices. This was, the judge concluded, an unusual and unexpected step up. Some judges might have taken a more stringent view of the appropriate percentage, but, for my part, I do not think that this court can or should interfere, in either direction, with the Recorder’s carefully reasoned assessment regarding contributory negligence.
20.	It follows that I would dismiss both the Home Office’s appeal and Mrs Lowles’s cross-appeal.
Lord Justice Wall:
21.	I agree.
Mr. Justice Buckley:
22.	I also agree.