Andrew Kasongo v CRBE Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Choudhury |
| Judgment Date | 28 March 2023 |
| Neutral Citation | [2023] EWHC 1464 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QA-2022-000057 |
[2023] EWHC 1464 (KB)
Mr Justice Choudhury
Case No: QA-2022-000057
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr B. Rodgers (instructed by NV Legal Limited) appeared on behalf of the Appellant / Claimant.
Mr H. Cohen (instructed by Plexus Legal LLP) appeared on behalf of the Second Defendant / Respondent.
APPROVED JUDGMENT
This is the claimant's appeal against the judgment of HHJ Saggerson striking out the claimant's claim against the second defendant, Transport for London (‘TfL’), on the grounds that, pursuant to CPR 3.4(2), the statement of case discloses no reasonable grounds for bringing the claim. Permission to appeal was granted by Ritchie J at an oral renewal hearing on 9 September 2022, having initially been refused on the papers by Eyre J.
The background to this matter is as follows. The claimant brought proceedings against the defendants following an accident that occurred on 30 August 2018 at his workplace at 14 Pier Walk, London (‘the premises’). The claimant's particulars of claim state that the defendants were the occupier of the premises and that he was employed by a company called Interserve Limited as a Security Officer but was sub-contracted to TfL.
Paragraph 3 of the particulars of claim states that:
“(i) On 30 August 2018 at approximately 7.20 am the claimant entered the loading bay area of the said premises when he tripped over a pole that had been left on the floor from an earlier delivery.”
It was claimed that the pole posed a tripping hazard, and that the accident was caused or contributed to by the negligence and / or breach of statutory duty of the defendants, their employees or agents, acting in the course of employment. It was said in particular that the defendants owed the claimant, as a visitor, the common duty of care under the Occupiers Liability Act 1957 (‘OLA’). Several particulars of negligence / breach of statutory duty are pleaded, most of which refer or relate to the leaving and placing of the poles. There are two more generalised allegations of failing to take any, or any adequate, care for the safety of the claimant. Damages limited to £15,000 were claimed for injuries to the claimant's knee said to have been sustained as a result of the fall.
Both defendants served defences. Each denied that it was the occupier of the particular loading bay in which the accident occurred. TfL admitted that it was the occupier of the area surrounding the loading bay which was separated from the landlord's area by a low metal barrier, but it claimed to have no control over the loading bay. It said that the poles did not belong to it and that it had no authority or power over them. TfL further denied that the claimant tripped over the pole. It referred to CCTV footage which it claimed showed the claimant fell as a result of clipping his foot on the barrier as he attempted to climb over it. Negligence and breach of statutory duty were denied. The first defendant also denied the claim, asserting that TfL was, in fact, the occupier of the loading bay.
It is not in dispute that the particulars of claim were in standard form containing the essential ingredients for a claim of negligence under the OLA. It was not suggested by either defendant in its defence that the pleaded claims were defective on their face.
Subsequently the first defendant accepted that it was the occupier of the relevant loading bay. It also became apparent that the poles had in fact been left in the loading bay on the instruction of one Frank Newman, a Control Room Officer and employee of Interserve Limited.
In December 2020, the claim was allocated to the Fast Track, with directions, and the matter was listed for trial on 20 May 2021 for one day. In the event, the trial had to be adjourned, and on 29 July 2021, the matter was given a renewed listing date of 3 March 2022.
On 5 October 2021, TfL applied to strike out the claim against it with costs. It also sought an order for the enforcement of any costs order in its favour “to the full extent of such order without the permission of the Court in accordance with CPR 44.15.” The relevance of CPR 44.15 is that it provides an exception to the qualified one-way costs shifting (‘QOCS’) regime that applies where proceedings have been struck out on the basis that there were no reasonable grounds for bringing them. The effect of the exception is that the claimant, who would otherwise be protected from having to pay the defendant's costs, becomes liable for costs in the usual way.
The basis for the application was:
(i) That the accident occurred in an area over which TfL had no control and to which it could not authorise the claimant's entry;
(ii) TfL had no involvement in the delivery of the poles, but the claimant was aware of the presence of the poles having been aware of their delivery the previous day;
(iii) As the first defendant is the responsible occupier, it is not clear why TfL remains in the proceedings.
(iv) It had become apparent that the accident occurred while the claimant was attempting to climb over a metal barrier into the retail waste area (that being another term used for the loading bay);
(v) The claimant has no real prospect of succeeding with his claim against TfL and has no reasonable grounds to bring the claim against it.
The application was heard by the Judge on 8 February 2022, just a few weeks before trial. The claimant was represented by counsel, Ms Mufti, and TfL was represented by counsel also. Having heard the application, the Judge delivered an ex-tempore judgment. There is no transcript of the judgment as the recording was corrupted. However, counsel have agreed a note of the Judgment which is fairly full, and which has been approved by the Judge. References below to the Judgment are to that note.
The Judge commences by referring to the plan of the property which marks the area where the accident occurred as a blue rectangle. The Judge continues as follows:
“5 Both defendants recognise that the second defendant is not therefore an occupier of that relevant blue part of the floor. There are also photographs which show the delineation of the areas. Those show a low barrier about no higher than lower calf length on an average sized person, a metal barrier extending across the boundary of the orange/pink area of the plan and the blue rectangle which is plainly designed to in part demonstrate the areas of the various occupiers.
6 The circumstances in which the claimant claims to have been injured are as follows. He was employed as a security man for the second defendant. As part of those responsibilities, he had to supervise and monitor deliveries of goods to the building.
7 Although the facts are somewhat opaque, at some time probably the day prior to the claimant's accident, a delivery of pipes was arranged. Those pipes were ultimately placed on the floor of the blue hatched area and marked with a cross area of the floor plan. On the far side of other side of the calf height boundary barrier between the first defendant and the second defendant's areas.
8 On the day of the accident itself, it is useful to refer to CCTV evidence which for once is of high quality, in colour, and shows over the course of only a few seconds exactly how the claimant claims to have sustained the accident the basis of his claim
10 The CCTV shows without any room for doubt, that for whatever reason, and at whoever's direction, the claimant was making his way over the barrier in order to do something in the blue coloured area on the other side of the barrier. He was going to collect a delivery note/receipt document in respect of the delivery of pipes left on the floor of the blue coloured area. In order to retrieve it, he needed to step over the barrier.
11 The CCTV shows the claimant lifting his left leg over the barrier and placing his left foot firmly and flatly on the concrete floor of the blue coloured area on the plan without being compromised by the pipe/pipes, and having done that, he then unsurprisingly must bring his trailing right leg over the barrier too. In doing that, the video evidence is abundantly plain, he catches or knocks his right heel on the top of the barrier which causes him to lose his balance and subsequently takes the fall and sustains the injuries which are the centrepiece of his claim for damages. That's how the evidence demonstrates what happens.”
The Judge noted that that this was an application and not a mini-trial and that to the extent that any factual findings were made, particularly any that were adverse to the claimant, it could only be in circumstances “where the facts found brook no room for sensible argument.” He concluded that, “the fact that the second defendant is not an occupier of the blue area is a fact beyond the reach of any sensible argument to the contrary.” He further concludes that, “The circumstances of the accident are also beyond any reasonable scope of sensible contradiction.”
The Judge then analysed the claim as set out in the particulars of claim and concluded that the allegations contained therein, “are manifestly unsustainable as the evidence and disclosure has unfolded.” Having considered the claimant's submission that the essence of TfL's application was that the claimant cannot win, rather than that the claim disclosed no reasonable grounds for bringing the claim,...
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