Surveyor — Accident during survey — Occupiers’ Liability Act 1957, section 2 — Negligence alleged against company in respect of factory premises — Claim by surveyor for damages — Surveyor partially at fault and must be held to have contributed to accident
chartered surveyor was injured in 1985 in the course of carrying out a survey
of redundant parts of the defendants’ premises which were to be let to other
occupiers — The plaintiff was assigned a trainee graduate on the defendants’
staff to show him the relevant parts — The accident took place in what had been
the printing ink store — Access to this store was through a covered area used
as a temporary storage space — There were three doors to the store, but two
were blocked on the day of the accident, leaving only the left-hand door
available — The storeroom inside was, apart from ledges on each side, nearly
3ft below the level of the adjacent covered area — It formed in fact a pit
running right up to the door openings — In the past, barrels of printing ink
had been rolled in and stacked on the ledges, so that men working on the lower
level could easily tap them — On the day of the accident there was no lighting
in the storeroom; it was pitch black except for a faint gleam of light at the
far end owing to a defect in the roof — The lighting in the surrounding area
was poor — On walking through the left-hand door there was an immediate drop to
the pit below — It was a most dangerous hazard, indeed a trap — It was plainly
incumbent on the defendants as occupiers, in exercising their duty of care, at
least to warn visitors of the danger that lay beyond the entrance — The central
issue was whether such a warning was given to the plaintiff
happened in the afternoon — In the morning the trainee staff member who had
been assigned to the plaintiff showed him round the premises including the
covered area — There was a certain conflict of evidence as to what took place —
The staff member said that he had specifically pointed out to the plaintiff the
edge of the pit — The plaintiff said that he was not told of a sunken pit and
that the first he knew of it was when he fell into it — The judge decided that
no specific warning was given to the plaintiff about the immediacy of the
danger he would face on entry — When the plaintiff came back in the afternoon
he fell into the pit and was injured — His main injury was a broken ankle,
which caused trouble over a lengthy period, but he also had a flake fracture of
the right elbow — He was off work for three and a half months, then on
half-time for a further period
found that the defendant’s liability was clearly proved — There was, however, a
question as to whether the plaintiff himself had taken all reasonable care — A
surveyor examining a disused factory would reasonably be expected to take extra
care — The plaintiff was caught unawares by the trap constituted by the pit,
but if he had turned on his torch (which he had with him) just before he
stepped through, or at least had cast his eye to the ground as he was entering,
the danger would have become apparent even in the very poor light that existed
— The judge held that the plaintiff could not escape all responsibility for the
accident and assessed his contribution to it at one-third, the defendants’
contribution at two-thirds — The judge added that, even if he had been
satisfied that a specific warning had been given, he would have held that the
defendants should have maintained for all visitors a notice or barrier
reminding them of the danger — In that case, however, the balance of blame
would have been reversed
considering the evidence of the plaintiff’s injuries and damage, including
conflicting evidence of specialists as to the risk of future degenerative
physical changes, the judge assessed the full liability at £11,735.99, of which
the plaintiff was entitled to two-thirds — Judgment for that amount with
interest and costs
No cases are
referred to in this report.
This was an
action by Geoffrey Rae FRICS against Mars (UK) Ltd for damages on account of
the defendants’ alleged negligence or breach of statutory duty as occupiers of
factory premises at Fairley Road, Slough, whereby the plaintiff suffered
injuries, loss and damage.
Stephen A John
(instructed by Anthony Thipthorpe & Co, of Southend on Sea) appeared on
behalf of the plaintiff; Timothy N B Higginson (instructed by Shoosmiths &
Harrison, of Reading) represented the defendants.
Giving
judgment, JUDGE WHITE said: This is a claim arising from an unfortunate
accident to the plaintiff when carrying out a survey for the defendants at
their factory premises at Fairley Road, Slough, in 1985.
In short, on
stepping into a storeroom which was in darkness, he stepped over the edge of a
shallow pit, which came right up to the doorway, and, on falling, fractured his
left fibula and sustained other minor injuries. He complains that the accident
was caused by the negligence or breach of statutory duty owed to him by the
defendants as occupiers of the premises, and he seeks damages for the injuries
he received and the loss and damage that resulted. The case turns essentially
on the defendants’ duties to the plaintiff under section 2 of the Occupiers’
Liability Act 1957.
The defendants
deny that they were responsible for what happened. The plaintiff, they say, was
entirely to blame for his fall.
The plaintiff
is a very experienced chartered surveyor, aged nearly 59, with a partnership
practice in central London. He had, on previous occasions, been instructed by
the defendants to survey parts of their factory premises at Slough which, by
1985, had become redundant for their purposes. The purpose of the surveys was
to draw up schedules of condition before units were leased to other occupiers.
In April 1985
he was instructed to carry out such a survey on four bays of premises at 6
Fairley Road, which were to be sublet to an engineering company, Jordans
Engineering Ltd. An appointment
by a trainee graduate of the defendants, on the defendants’ staff, a Mr King.
Mr King was assigned to him for the day.
He duly
arrived and, after being provided by Mr King with a white coat and a hat, was
taken by him from the reception office to the building that was to be surveyed.
A rough plan is included in the papers. Further, from his previous visits, the
plaintiff had the more detailed internal layout plan which is also to be found
in the papers. Although he had that plan, he had never been in these particular
premises before that day.
Mr King first
took him to a Portakabin on the site outside the building and introduced him to
Mr Perry, who was Jordans’ site manager. Jordans had been given licence to do
pre-occupation work. Some work was in progress at the time, but not in the area
where the accident happened.
The accident
occurred in the printing ink store, and that is shown at the top end of the
plan — on the plan it is marked simply ‘Printing ink store’. This had been used
for the defendants for the storage of printing ink in the past, until the
premises had become redundant about 18 months before.
The main
access to the store was from an adjacent covered area, called ‘Covered way’ on
the plan, which gave out on to the street running alongside the building
through folding doors. The covered area can be seen in photographs taken a year
later, save that the wall separating it from the main internal space was intact
at the time and not as seen in the photographs. Internal access to the covered
area was through a door in that partition wall, and on the day of the accident
the external folding doors were shut.
Access to the
printing ink store could be obtained from the covered way, through the three
doors which are seen in a photograph. The two outer doors were, for the purpose
I shall describe later, unusually wide — they were about 3 ft 9 ins in width.
The central door was a normal 2 ft 6 ins.
On the day of
the accident only the left-hand outer door could be approached because the
other two were blocked by objects being temporarily stored in front of them,
such as can be seen in the photographs taken several days after or similarly in
the photographs taken the following year by Mr Stanton. The covered area was
constantly used at the time as a temporary storage space.
A most unusual
feature of the storeroom was that the floor level, apart from two ledges which
ran along its longitudinal sides, was 2 ft 9 ins below the level of the
adjacent covered area from which access would normally be gained. The room
formed a pit running right up to the door openings, as can be seen in one of
the photographs. The longitudinal ledges were about 3 ft wide, but did not
extend out into the room sufficiently to provide a walking surface covering the
whole width of the outer door entrances. This can be seen clearly in the
photographs. Within inches of the threshold line of the door frame, the floor
abruptly ended, just over a foot from the right-hand side of the frame, with
the gaping hole of the pit opening up at that point. Otherwise the floor went
straight ahead along the longitudinal ledge. The door was hinged to open
outwards on the wall side.
The
explanation of this curious floor arrangement, which does not appear on the
plan that the plaintiff had, was that when used as a printing ink store barrels
of ink were rolled in through the outer doors and stored racked on the ledges
with part overhanging the pit so that men working at the lower level of the
room could tap easily from them. Entrance to the room for the employees was
through the middle door, down steps, the outer doors being simply for the
rolling in or out of barrels when necessary.
By the time of
the accident, the store not having being in use for some time, there were no
steps down from the central door and, as I have indicated, neither that door
nor the right-hand outer door could be approached. Indeed it is Mr Perry’s recollection
that they had both been nailed up.
Further, there
was on May 24 1985, the day of the accident, no lighting in the storeroom. It
was pitch black, apart from a very faint light caused by a slight defect in the
structure at roof level at the far end of the room from the doors. The lighting
in the area was poor. It consisted of one fluorescent light in the ceiling — it
can be seen in a photograph — on the far side of the cross-girder from the
doors. The photographs give no impression of the lighting in the area at the
time, as the folding doors were closed and the partition walls in place with
only a door or small opening in it. All agree that the lighting in the area was
poor at the time. Mr King described it as ‘dimly lit’.
Walking from
the area through one of the three doors at the time involved walking from a
dimly lit space into one which was pitch black. On walking through the
left-hand door there was, within inches of the threshold to the right of the
door frame, an immediate drop to the pit below. Clearly this was an unusual
hazard. The left-hand door had been designed not to be the door of access to
the room but for the manhandling of printing barrels on to the ledge where they
were stored, and the ledge had been built short of the right-hand edge of the
door specifically to allow the overhang required. It was a dangerous hazard if
used as an access door to the room, particularly as there was no lighting at
all in the room and only dim lighting in the area from which access was gained.
Because of its
dangerous and unexpected nature, it was plainly incumbent on the defendants, in
exercising their statutory common duty of care, at least to warn visitors of
it, to warn them of what was literally a pitfall which lay a step or two inside
the darkened room if special care were not taken to keep to the left-hand side
of the entrance.
The central
issue in this case is: was such a warning given to the plaintiff by Mr
King? This turns on differing
recollections of two patently honest witnesses, the plaintiff and Mr King, as
to what happened and what was said when the latter was showing the former round
the premises to be surveyed that morning, and, in particular, during the very
short time they were, in the course of that tour, in the covered area.
It is the
plaintiff’s recollection that at no time was he told of the existence of the
pit in the room or of the very immediate danger from it that lay just beyond
the door. When they entered the covered area, he recalls that the left-hand
door was open outwards, and was being held open by a trolley which had some
steel on it. That was to the left of the door entrance across the threshold,
part in the area and part in the store, taking up about 2 ft of the width of
the doorway.
Mr King said,
when they were there, that it was possible that the store was going to be
converted into offices, but one could not, because of the poor light in the
area and there being no light in the store, see very much through the door. He
did not get close to the door at any time; he never saw the pit; and it was not
mentioned. He did, however, ask if Mr King knew where the light switch was for
the store. Mr King, who, he got the impression, did not know the building very
well, said that he did not, but thought it might be at the other end of the
room. There was no light switch visible. The switch which is by the central
door, shown in one of the photographs, was covered at the time by stored goods,
and in any event, we now know, was not working. It did not control the store
lighting. He cannot recall — that is, the plaintiff cannot recall — either of
them looking for a switch before leaving the area. Mr King asked him if he
wanted help, but the plaintiff said no, as he had a torch. He has explained
that it would not have been usual to have Mr King, although he had been
assigned to him for a day, follow him about throughout the day while he did his
survey. ‘He did not tell me,’ said the plaintiff, ‘there was a sunken pit. The
first I knew was when I fell in it.’
It is Mr
King’s recollection that when, as he was showing the plaintiff around the
premises, they were in the area he did look for a switch for the storeroom
lights and in particular reached inside the open door hoping to feel if there
was a switch there by the door. ‘I remember,’ he said, ‘remembering that there
must be a light somewhere and we would find out where the switches were if
necessary.’ The plaintiff, however, said
that it was not necessary as he had a torch. ‘It was,’ he continued, ‘pitch
black in the store itself, but you could see about 5 ft into it because of the
light from the area, although it was dimly lit. The edge of the pit was clearly
visible.’ The plaintiff was just behind
him, and, although he could have clearly seen it in any event, Mr King said he
specifically pointed out where it was, where the edge of the pit was, by the
door — when he was at the door. ‘I am positive,’ he said, ‘I made the plaintiff
aware of the edge of the pit.’
Further, he
recalls having a general discussion about the use of the pit either before or
after, and Mr Perry says that when first introduced, the plaintiff was told of
the pit in a general way, as well as the work that Mr Perry’s men were doing.
The pit, or the storeroom, was referred to as ‘the black hole’, the name by
which the store was jokingly known by his men working on the site. Because of
the danger of the pit and the lack of light, he had put the store out of bounds
for them.
I will return
to this issue a little later. For the moment, I note that having been shown
around the premises by Mr King, the plaintiff
to go into the store to carry out his survey of it.
I accept the
plaintiff’s account of how the accident occurred. The trolley, he said, was
still there. I accept there was a trolley there, although Mr King has no
recollection of it. The plaintiff had a clear recollection of it, and I see no
reason why it should have just come into his recollection of events unless it
was actually there. There was no obvious reason for his making up this detail.
‘As I approached the door,’ he went on, ‘I saw a faint light in the distance. I
took one step forward with my left foot, went forward with the right, and went
straight into the pit.’ He had his 2 ft measuring
rod with him, a clipboard, and he was reaching with his hand for the torch
which was in his pocket. The torch was later found in the pit. ‘I hadn’t got
into the room when I fell,’ he said. ‘I wanted to get into the room and put the
torch on, as I’ve always done.’ Had he
got into the room with his torch, he would have looked for a switch, but fell
before he could.
I am satisfied
that this a true account of his fall. I make this finding as there was some
hearsay reference to his torch and a helmet being found a good distance from
the door entrance. This was not pursued with him, however, in
cross-examination. As regards the helmet, I prefer his recollection that he was
not provided with one on this occasion. He had been working there, I recall, all
the morning, and there would be no reason why he should have forgotten about
having this with him. It is a most peripheral detail, but, whatever Mr Perry’s
normal practice was, I prefer the plaintiff’s recollection on this.
I now return
to the central issue. What warning, if any, was the plaintiff given of this
unusual and very dangerous hazard? I
have come to the conclusion that no specific warning was given to him of the
immediacy of the danger of the pit if the storeroom was, as it had to be
because of the use the defendant was making of the covered area, entered
through the left-hand door. I think the truth is that when the two men came
into the covered area during the tour of the premises that morning, their
attention was concentrated not on the pit but on the lighting for the
storeroom. Both minds were, in the short time they were there, concerned with
where the switch might be. With hindsight, Mr King may genuinely feel that he
must have, when this was happening, (a) seen himself where the pit edge was and
(b) drawn the plaintiff’s attention to it, but I do not find this actually
happened, and I prefer the plaintiff’s recollection of what was said.
I bear in mind
that before he went into the area that morning Mr King had no idea himself that
the pit was as extensive and was constructed in the way that it was. His
impression of the layout of the storeroom and the purpose for which the pit
existed was quite different from what it was. Further, it is plain that he had
no detailed knowledge of the storeroom lighting. Even when the plaintiff’s
colleague came the next month, time was again spent by Mr King looking for the
switch. Mr Perry’s evidence makes it plain that there was no lighting in any
event, but Mr King clearly was unaware of this. Further, Mr King did not recall
the trolley, which is curious, if, as he says, he clearly now recalls, he had
gone to the entrance to feel round the door frame for a possible switch on the
internal wall. Again the plaintiff’s recollection that Mr King told him that he
thought there might be a switch at the other end of the room has a true ring
about it.
Finally, if
warned, I do not think that this would not have affected the plaintiff’s
actions when he came back to the room in the afternoon. The position of the pit
was such — it was such a curious feature of the room — that I think it is most
probable it would have stuck in his mind. I accept the plaintiff’s evidence
that at no time was he specifically warned of the nature of the hazard lying
behind the left-hand door. Whether or not a general mention was made of there
being a pit in the room — and on this I again prefer the plaintiff’s
recollection — the exceptional nature of the hazard was such that the duty upon
the occupier required that a specific warning be given upon the immediacy of
the danger on passing through that particular door frame. It was a duty to all
visitors. It was a most dangerous trap.
The defendants
must, therefore, shoulder liability for this accident.
Did,
nevertheless, the plaintiff, on these findings, exercise all the reasonable
care himself for his own safety that might have been expected of him? Clearly, in surveying a disused factory,
extra care is needed, can be expected of and no doubt is exercised by surveyors
who go into different parts of it without previous knowledge or detailed
knowledge of the building.
On this
occasion the plaintiff was caught unawares by this trap, at least in part,
because he was not warned of the very unusual nature of the danger. On the
other hand, if he had either turned his torch on and shone it ahead of him just
before he stepped through or at least have cast his eye to the ground as he was
entering the room, the danger would have become apparent even in the very poor
light that existed. I think the truth was that, as he said in his evidence
frankly, his eye was caught at that moment by the faint light coming from the
other end of the room at roof level, and it was in this split second he took
his second step.
In my
judgment, he cannot escape all responsibility for what happened. He was not
quite as careful as he should have been. He contributed to this unfortunate
accident and I assess his contribution at one-third. I assess the contribution,
therefore, at two-thirds the defendant, one-third the plaintiff.
I indicate,
before assessing damages that, even if I had been satisfied on the facts that a
specific warning was given, I would have held that in the discharge of their
statutory duty the defendants should have kept for a visitor — and for all
visitors, not only their employees and the employees of Jordans — a notice or
barrier by way of reminder because of the immediacy of the danger once a step
was taken through the door. The balance of blame would, however, have been
reversed.
Finally, I
indicate that, in my judgment, the defence of Volens which appears in
para five has no place in this case.
I turn now to
the injuries that the plaintiff sustained. The main injury was a comminuted
fracture of the distal left fibula, with a slight lateral talar displacement.
Also, although he did not appreciate it at the time, he had a flake fracture of
the right elbow. He plainly fell on his right side — this is consistent with
the account he gives of the accident — and sustained bruising at the elbow and
to the right thigh.
It was the
fracture at the ankle which was serious. At the local hospital it was put in
plaster, but had to be reset and plaster reapplied at his own hospital at
Southend the following day. He was never an in-patient. Four days later he was
put on partial weight-bearing crutches, and the plaster was removed early in
July. There followed six weeks of intensive physiotherapy, three days a week.
He had persistent pain to the end of the year, especially in cold and wet
weather, and was throughout this time limping because of the discomfort. He had
a feeling of instability as well. He also had some swelling.
He was off
work for three-and-a-half months, then went back to half-time work, and was not
back to full-time work until the following March.
The elbow
cleared without difficulty, but he has been left with a crepitus in it if he
puts his weight on the elbow on a table. This is not an inconvenience, but it
is an unfortunate legacy he has been left with.
As regards the
fracture of the left lower limb, he has recovered reasonably well and the
residual effects are small. It still swells at times — that is the ankle — and
occasionally he will get, in cold weather or wet weather, a twinge in that
joint. He finds climbing ladders and getting into small confined spaces more
difficult than before, but the effect on him is marginal. Generally speaking,
he has returned to a normal active life for his age.
There are,
however, two differences between the parties upon the medical evidence: the
first as to the degree of risk of degenerative changes flowing from the
fracture, and the second as to the cause of an ingrowing left toenail which
developed some time after he had begun weight-bearing on the left leg again. It
is common ground that the ankle has not healed in its normal alignment; there
is a displacement. However, there is a strong difference of opinion between the
consultants as to whether that displacement is or is not of real significance.
Mr Boston, the
consultant called by the plaintiff, is of the opinion that the displacement is
of importance and, as a result, there is a significant risk of later
development of degenerative changes. He puts the risk at a 50% chance of this
happening in 10 years from the date of the accident. The plaintiff then would
be in his mid-sixties. Mr Davies, the consultant called by the defendants, is
of the view that the displacement is so minimal that the risk is very much
less. It cannot be eliminated, but he puts it at 5% or, at the most, 10% of
degenerative changes occurring in the same period.
The difference
between the consultants appeared in court curious, based, as it were, on
different assessments of the misplacement, the degree of misplacement and the
measurements of it shown on the same X-rays. Mr Boston sees, on that main
X-ray, one taken by Mr Davies, a 3mm shift. Mr Davies says that the shift is
1mm. That is the shift in the position of the talus.
Of the two
experts on this particular point, I found, having listened to both carefully in
court, that Mr Davies was the more impressive of the two. He makes the point,
which I accept has force in this situation, that although nearly four years
have passed, there is still no sign of deterioration as might be expected to
occur. Second, he was firm in the interpretation of the X-rays which he had
taken as to what was to be seen in them, and I found, on this aspect of the
case, his observations and opinions the more reliable.
I award
damages on his assessment of risk; that there is not more than a 10% risk of
degenerative changes taking place within 10 years of the accident. There
remains a risk, but it is not so high as Mr Boston fears.
On the second
issue, I prefer Mr Boston’s evidence of the link between the onset of the
ingrowing toenail and the injuries sustained by the plaintiff in the accident.
In about October or November 1985 he began to suffer from an ingrowing toenail
on his left foot. First it became infected. It was treated, but eventually, on
December 16 1985, it had to be avulsed under general anaesthetic. This was not
successful, and he had to have further operative treatment, again under general
anaesthetic, the following June. He now has a small residue of toenail left,
but it does not cause trouble.
The issue,
‘Was this attributable to the accident?’
is of some importance, not only because it will affect general damages
but also because of a substantial additional special damage claim that will
follow if the condition is linked with the accident. Mr Boston’s opinion is
that the condition was a direct result of the plaintiff, over a period of
months, changing his gait to relieve the pressure on his ankle. He was limping
from the time the plaster was removed until well into the following year. The
change of walking pattern put, Mr Boston thought, pressure on the toe, bringing
the condition about. Mr Davies accepted that this can be possible, but thought
it was unlikely. He was of the opinion that there was no link; the condition
just happened. It can just happen; it can be triggered by many circumstances;
and in his view the accident cannot be linked with it. He relies on the long
time before the condition set in. The plaintiff was weight-bearing on the leg
for many months, first in plaster and then after the plaster was removed,
before there was any sign of this condition. It just happened, is Mr Davies’
opinion, as it might have happened to any other person.
Now, I have
carefully considered the opinions of both these consultants, but on this point
am quite satisfied that, on the balance of probabilities, the condition was
triggered by the change of gait over that passage of time and must causatively
be linked to the accident. I therefore assess damages on this basis. Bearing
all these matters in mind, the award I make for general damages is £4,750, with
special damages which are agreed at £6,985.99, accepting that the toenail
condition is linked to the accident. The final award, on the basis of full
liability, would be £11,735.99 — counsel will check the figures in a moment —
and judgment will be for two-thirds of that sum.
Judgment was
given for the plaintiff accordingly with interest and costs.
