Case No: B3/2007/1846
B3/2007/2833
Neutral Citation Number: [2008] EWCA Civ 647
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION 
(HIS HONOUR JUDGE ALTMAN QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 19th May 2008

Before:

LADY JUSTICE SMITH DBE
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Between:

	PICCOLO
	Appellant	
	- and -		
	
LARKSTOCK LIMITED 
T/A CHILTERN FLOWERS AND OTHERS	

Respondent	

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Mr R Pershad (instructed by Messrs Greenwoods) appeared on behalf of the Appellant.
Mr H Trusted (instructed by Messrs Stewards) appeared on behalf of the First Respondent.
Mr C Russell (instructed by Messrs Berrymans Lace Mawer) appeared on behalf of the Second Respondent.
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Judgment
Lady Justice Smith:

1.	This is a renewed application for permission to appeal the decision and order of HHJ Altman on 17 July 2007.  The claimant, Mr Piccolo, was injured when he slipped on flower petals and water lying on the floor on the concourse of Marylebone Station.  The petals and water had emanated from a display of flowers outside a flower shop operated by the first defendant, Larkstock Limited, which was a tenant of Chiltern Railways, the second defendant, who was the main occupier of the station premises.  As I understand the position, Larkstock was a tenant of the shop premises and had a license from the second defendant to display its flowers on the station concourse.

2.	The judge held that Larkstock had been negligent in permitting petals and water to be on the floor of the concourse.  He held that the cleaning system, which was based on responding to spillages which were noticed by the staff, had been inadequate.  The claimant’s accident had been caused by that negligence. Tthere is no appeal from that holding.  In addition, the judge held that Chiltern Railways had not been negligent or in breach of its duty of care under the Occupiers Liability Act, although it owed the claimant a duty under the Act.  Larkstock seeks permission to appeal the holding in respect of the second defendant.  

3.	The judge also held that the claimant had not been contributorily negligent; he had been taking proper care for his own safety and Larkstock seeks permission to appeal that holding as well.
4.	Before dealing with the arguments I should say that the judgment is long and contains a detailed and careful analysis of the evidence with findings of fact where necessary.  Those findings are not challenged and indeed they could not be.  One of the applicant’s complaints about the judge’s reasoning in respect of both of the issues under challenge is that he dealt with them in very few sentences.  So he did; but the brief reasoning and conclusions were, in my judgment, firmly based on the findings of fact which had preceded them, and there is in my judgment no prospect that the Court of Appeal would find the judge’s reasoning to have been inadequate.  

5.	The factual background in a little more detail is that the claimant was a regular user of the station concourse and was aware of the presence of the flower stall. He said that he was not in a hurry; he was not walking quickly and was wearing ordinary sensible shoes.  He was walking between the flower stall and a pillar, but this was a frequently-used route.  It was put to him that because he knew the area and knew that there was a flower shop there, he should have been aware of the risk that there would be water or petals.  He accepted that, in effect, if he had thought about it he might well have been aware of that risk.  But he did not accept that, because he was aware that there was a flower shop and a display there, he ought to have been looking down at his feet.  He did accept that, had he looked down, he would have seen the petals because they were yellow.  The judge dealt with this allegation briefly by saying that in his judgment it was not negligent for the claimant to walk on the route that he took without looking down at where he was putting his feet.  He briefly cited a passage to similar effect from Ward v Tesco Stores Ltd 1975 [1976] 1 All ER 219.
  
6.	The challenge to this finding is based on the proposition that the claimant should have realised that there might have been hazards on the floor.  Two witnesses, who were also regular users of the station, had said that they were aware of the hazard; they had seen shop assistants putting out the display and knew that there was a hazard there, so they always took particular care. However, there was no evidence that the claimant himself had been aware of a hazard before.  The judge, as I have indicated, was of the view that in the prevailing circumstances there was no reason for the claimant to be looking at his feet.  In my judgment the judge was entitled to form that view on the evidence and I do not think that there is any realistic prospect that the Court of Appeal would say otherwise.

7.	As to the alleged contribution of the second defendants, Chiltern Railways, the judge held that it had not breached its common law duty of care.  It had its own cleaning system for the whole concourse, but it was not designed to deal with accidental spillages which might occur many times a day outside the flower shop.  Chiltern Railways was aware of the first defendant’s system of cleaning, was aware that accidental spillages occurred and that the system was open to criticism.  There had been an accident in January of the same year in which the claimant’s accident occurred in March.  Further, there was a term in the lease requiring the first defendant to keep the premises in a clean and tidy condition, but it seems to me that that would not necessarily apply to the use of the concourse for the display of flowers.  However, it was not disputed that the first defendant was responsible for cleaning up the mess -- the water and the petals and any other mess -- that emanated from its display of flowers.  It was also accepted that the second defendant had a duty to the public in respect of that area.  

8.	The second defendant had written to the first defendant on a number of occasions requiring it to improve its cleaning system and suggesting that the supervision of the display area was not adequate.  Indeed, the second defendant had threatened the first defendant with termination of the tenancy if matters did not improve.  However, the response to these complaints and threats of termination was that the first defendant acknowledged the problem and promised to do better.  The second defendant’s evidence was that it was moving towards taking more formal steps against the first defendant but had delayed doing so because the first defendant appeared to be cooperative and anxious to improve matters.  The judge asked himself whether the second defendant had been in breach of its duty in taking this (perhaps one could say tentative) approach and not acting more positively.  He was of the view that the approach had been reasonable. It had been sufficient and reasonable in all the circumstances to take a staged approach. 

9.	The argument today is that the judge was wrong; he should have held that the second defendant should have been stricter and tougher on the first defendant and should have done more.  It is said it should have terminated the floor license instead of threatening to.  It seems to me that that would have been a drastic remedy and a complaint which sounds ill in the mouth of the first defendant. Also it was said that the second defendant could have coned off the area between the flower display and the pillar.  Its response to that was that I t was reluctant to do that because it would restrict the areas available to the public; however, it does appear that it had to do that after this accident had occurred.  It is said that the second defendant should have done it before, thereby giving priority to the safety of the public over the amount of space that was available for the public to pass and repass.  It was also suggested that the second defendant should have instructed its cleaners to clean up any spillages at the flower stall.  The judge’s view about that was that that was not practicable; it was not practicable to have somebody keeping watch on the flower stall at all times but it was reasonable to expect Larkstock to do that.  

10.	The judge had the difficult task of weighing the various factors and arguments, and deciding whether it was reasonable for the second defendant to take a staged approached.  He did acknowledge that the second defendant would have been justified had it taken a tougher approach, but he reminded himself that the duty was to do that which was reasonable in the circumstances.  I remind myself that under the Occupiers Liability Act the second defendant was not the insurer of the state of the floor. It seems to me that the judge was entitled to take the view that he took. It is not realistic to expect that the Court of Appeal would say that he had been wrong to do so.  It was an exercise of his judgment that, it seems to me, he was entitled to make after evaluating the evidence in the careful way that he did.  

11.	For those reasons I do not consider that either branch of the first defendant’s application has any reasonable prospect of success and the application is refused in both respects.

Order:  Applications refused