Aaron George Furnell and Another v Jacqueline Flaherty (trading as Godstone Farm) Health Protection Agency (Third Party) Tandridge District Council (Fourth Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Turner |
| Judgment Date | 27 February 2013 |
| Neutral Citation | [2013] EWHC 377 (QB) |
| Docket Number | Case No: QB/2012/0382 |
| Court | Queen's Bench Division |
| Date | 27 February 2013 |
[2013] EWHC 377 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Turner
Case No: QB/2012/0382
and
and
Jonathan Waite QC and Peter Houghton (instructed by DAC Beachcroft LLP) for the Defendant
Lord Faulks QC (instructed by Weightmans LLP) for the 3 rd Party
Andrew Warnock QC (instructed by Clyde & Co) for the 4th Party
Hearing dates: 30 th January to 1 st February 2013
Approved Judgment
Introduction
Godstone Farm and Playbarn in Surrey is a commercial venture which offers, as its name suggests, a range of recreational activities on an agricultural theme intended to be particularly attractive to families with young children. The proprietor of the business is the defendant, Jacqueline Flaherty.
Visitors to the farm are encouraged to touch and stroke a wide variety of domesticated animals and pets. This is not, of itself, inherently unsafe but there is a risk that when people (particularly young children) are exposed to animals and their immediate environment they may fall victim to harmful strains of E. coli resulting from contact with the animals' excrement. In order to minimise the risk of infection it is important that strict precautionary steps are taken. These include maintaining good standards of cleanliness, providing washing facilities for the visitors and making sure that these are used.
In the late summer of 2009, Godstone Farm became the source of a very serious outbreak of E. Coli O157. Many visitors to the farm, most if not all of whom were children, became infected. Some fell very seriously ill and, it is believed, a number are likely to continue to suffer from long term health problems. Fortunately, there were no deaths despite the fact that it is recognised that this particular strain of E. coli is potentially fatal.
Among the visitors to the farm over the Bank Holiday weekend commencing 29 August 2009 were twins, Aaron and Todd Furnell aged two, who were accompanied by their parents and older sister. After the visit, all three children fell seriously ill with E. coli infection. The twins were so badly affected that they were admitted to hospital and underwent dialysis under general anaesthesia.
On 17 June 2010, a claim for compensation was brought in respect of the twins' injuries. It was alleged that the defendant was liable on a number or grounds including negligence, occupiers' liability and breach of statutory duty. The defendant denied liability in a defence dated 29 September 2010 and simultaneously brought additional claims under CPR Part 20 against the Health Protection Agency ("the Agency") and Tandridge District Council ("the Council"). She contends that these bodies (to whom, for the sake of convenience, I will refer collectively as "the third parties") are liable to the claimants in respect of the same damage as she was. She claims, therefore, to be entitled to an indemnity or contribution under section 1(1) of the Civil Liability (Contribution) Act 1978. In essence, she alleges that the third parties were aware of the outbreak traceable to the farm before she was but that, thereafter, they took no or no adequate steps to act upon that knowledge and thereby limit or prevent the exposure of visitors to the infection.
The Agency and the Council deny liability and, specifically, deny that they owed a duty of care to the visitors to the farm including the twin claimants. On 6 December 2011, the third parties applied to strike out the defendant's additional claims against them pursuant to CPR 3.4(2)(a) or under the inherent jurisdiction of the court. The relevant test under the rules is whether the statement of case discloses no reasonable grounds for bringing the claim. The third parties concede that their additional reliance upon the inherent jurisdiction of the court adds nothing of relevance to this. The Civil Procedure Rules apply generally to additional claims as if they were claims. The application to strike out came before Senior Master Whitaker on 12 March 2012. In a judgment dated 9 May 2012, the Master determined the issue in favour of the third parties and struck out the additional claims by order of 2 July 2012. He refused permission to appeal. Permission was subsequently granted by Cranston J. on 10 October 2012.
The farm
Those who run petting farms are not subject to bespoke regulations or codes of practice setting out a detailed framework within which they are required to operate. Nevertheless, in common with all employers, they are subject to the general safety provisions of the Health and Safety at Work etc. Act 1974 (which, by the operation of section 47, do not give rise to obligations breach of which can support a claim for civil liability) and regulations made under section 15 (any breach of which, where damage is caused, generally does give rise to civil liability). In addition, they owe the familiar duties imposed by the common law and under the provisions of the Occupiers' Liability Act 1957 to their visitors.
In this case, those acting on behalf the defendant have formally admitted liability in writing to compensate the twin claimants without, however, specifying the precise jurisprudential basis upon which this admission is founded.
The Health Protection Agency
The Agency was created by the Health Protection Agency Act 2004. Section 2 identifies the functions of the Agency. These include the protection of the community (or any part of the community) against infectious disease and the prevention of the spread of infectious disease.
The activities which the Agency is permitted to perform in order to fulfil its functions are set out in section 4 (1) of the Act. They include, at (1) (f) and (g), the powers to:
(f) make available to any other body such persons, materials and facilities as it thinks appropriate;
(g) provide information and advice.
In addition, the Agency is required by the provisions of section 6 of the Act to co-operate with other bodies which exercise functions relating to health or any other matter in relation to which the Agency also exercises functions. They, in turn, are required to cooperate with the Agency. It is not disputed that the Council was a body which shared mutual obligations of co-operation with the Agency under this section.
A more detailed framework document sets out the protocol under which the Agency operates. The SySxHPU ("HPU") was the local unit to whom the HPA delegated or devolved the responsibility of carrying out its functions in the Surrey and Sussex area. The HPU had a Multi-Agency Outbreak Control Plan dated January 2008 which sets out in some detail the steps involved in recognising and dealing with outbreaks of infectious disease. This document illustrates the relatively complex interrelationship between the various public bodies and their officers when co-operation is required to respond to such outbreaks.
In contrast to the Council, the HPA has no powers of enforcement in relation to public health.
Tandridge District Council
The responsibility of enforcing the provisions of the Health and Safety at Work etc. Act 1974 is distributed between the Health and Safety Executive ("HSE") and local authorities. The issue as to which body has the enforcement role in any given case is determined by the nature of the undertaking of the relevant employer whose activities are under scrutiny. Regulation 3 of the Health and Safety (Enforcing Authority) Regulations 1998 (SI 1998 No. 494) provides for local authorities to be the appropriate enforcing authorities in respect of the health and safety of those categories of undertaking specified in Schedule 1 thereto. Paragraph 11 of the Schedule covers petting farms. In consequence, the Council in this case was equipped with statutory powers identical to those available to the HSE when that body is acting within the scope of its allocated jurisdiction. Thus, the Council's environmental health officers in this case operated as health and safety inspectors pursuant to section 19 of the 1974 Act.
The powers afforded to inspectors under section 20 of the 1974 Act are both comprehensive and extensive. They include powers of entry, inspection and examination and the right to require any person to answer relevant questions. In addition, inspectors have the power to issue enforcement notices under sections 21 and 22 of the Act requiring the improvement or prohibition of activities which, if not complied with, may lead to criminal prosecution and, upon conviction, the risk of imprisonment.
The defendant's allegations
For the purposes of this appeal, it is accepted by the third parties that it must be assumed that the defendant's factual case as pleaded would be made out in full at trial. The case as presently pleaded was amended following some level of disclosure by the third parties. The Master gave permission for the amendments to be made before striking the case out.
The factual narrative which follows must, therefore, be treated for the purposes of this appeal as if it were an entirely accurate factual basis upon which to determine the existence or otherwise of a duty of care.
The defendant contends that the Council was responsible for investigating an earlier E.coli O157 outbreak that occurred at the farm in September 2000. As a consequence of that outbreak, a number of recommendations were made for the improvement of safety at the farm with a view to preventing any recurrence. These were subsequently enforced by the Council through the exercise of its...
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