Drysdale v Hedges
| Jurisdiction | England & Wales |
| Judge | John Leighton Williams |
| Judgment Date | 27 July 2012 |
| Neutral Citation | [2012] EWHC B20 QB |
| Docket Number | Case No: TLQ/11/1232 |
| Court | Queen's Bench Division |
| Date | 27 July 2012 |
[2012] EWHC B20 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
John Leighton Williams QC
Case No: TLQ/11/1232
This a trial of the issue of liability in a claim for damages for personal injuries arising out of a fall suffered by the Claimant, then 40 years old, on the 5 th October 2008 when she was ascending a flight of three steps leading to the front door of 3 Cannon St, Harwich, Essex ("the property").
The property, owned by the Defendant, is a mid-terraced Victorian house on three floors and consists of a basement, ground floor and a first floor. It is one of many similar properties in the terrace, all of which have steps, usually three steps, leading to the front door. Similar houses on the opposite side of the road tend to have more steps due to the different topography. Photographs show the property and neighbouring properties. Some of the photographs of the property were taken about 6 weeks after the fall and some a little later after a wooden handrail had been fitted next to the steps.
Access to the front door was via a concrete path leading to the three steps. The steps are about 1 metre wide. The depth of the bottom two steps appears to be about 11.5 inches but the top step leading to the front door is less deep. At the instance of the Defendant, who had acquired the property in 1998, the steps had been painted with red paint to improve their appearance.
To the left of the path a small area has been stepped down to basement level. This stepped area is separated from the concrete path by an ornamental brise soleil block concrete wall, typical, I am told, of the fashion of the 1970s. This wall has a continuous height of 950mm above path level along its length and continues alongside the left of the three steps to the front of the house. When it reaches the steps it is not raised so as to run parallel with the rise of the steps but the top level of the wall continues horizontally to the front of the house. Thus the height from the middle step to the top of the wall is 463mm, about 18". To the left of the wall at the steps there is a drop of 2.524m (over 8 feet) to basement level. The wall thus offers very limited protection against a fall from the steps down to basement level.
In June 2008 the Claimant was living in Scotland. She was looking for premises to rent and contacted Mr Cundall of Concord Property Management ("Concord") who managed the property for the Defendant. Mr Cundall states the Claimant visited the property in about late August / early September 2009. Terms of a tenancy were agreed and it was further agreed that she would sign and provide a copy of the tenancy agreement on her arrival in Suffolk. She was provided with keys to the property in advance of signing the tenancy, no doubt because the statutory services had agreed to pay the rent. The tenancy agreement was signed by the Claimant on 8th October but backdated to 5th October.
On 4 th October the Claimant arrived in Harwich and spent the night at the property. Her fiance, Mr Stuart arrived with a van load of possessions on 5th October and she and Mr Stuart set about carrying their possessions into the house. The 5 th October 2008 was a wet day and it was raining when the Claimant's accident happened.
The Claimant's account of the accident has not been in issue. As she and Mr Stuart were jointly carrying a large box up the front steps to the property, the Claimant leading and walking backwards and Mr Stuart taking the other end of the box, her right foot slipped when on the middle step and she fell to her right and over the wall alongside the steps down to basement level. She suffered serious back injuries.
On the Claimant's behalf it is alleged that the steps were "unduly slippery" as a result of being painted, being wet and because of the presence of dirt. Of these allegations it is the combination of paint and wet which were originally said to be the real villains. The presence of dirt was added by amendment at the outset of the hearing.
In addition it is alleged that the wall at the side of the steps was not sufficiently high and/or was not provided with a guardrail or handrail to prevent someone falling down to basement level. It is said that the presence of the inadequately guarded drop to the basement made it all the more important that the steps should not be slippery. It is not suggested that the Defendant had altered the wall in any way during the period of her ownership of the property.
It is alleged that these failures gave rise to breach of Section 2 of the Occupiers Liability Act 1957, breaches of a repairing covenant in the tenancy agreement and Section 4 of the Defective Premises Act 1972, and breach of duty at common law. The Claimant relied on her own evidence and that of Mr Stuart, her mother Mrs Porter, and her son Stephen, the latter of whose witness statement was agreed. She also relied on hearsay evidence of conversations between her then next door neighbours, Ms Kellie (or Kelly) Tyler and Mr Mark Tyler and a solicitor, Miss Lankester who then prepared statements for Ms Tyler and Mr Tyler, which were never signed. Miss Tyler's and Mr Tyler's whereabouts were not known.
The Defendant relied on the evidence of the Defendant and her husband, Mr Stephen Hedges, Mr Cundall the letting agent, and a witness statement taken from the same Miss Tyler, which conflicts with Ms Lankester's account of what Ms Tyler told her.
Both parties relied on expert evidence: the Claimant on Mr Highfield, a Chartered Surveyor; the Defendant on Mr Butcher, a structural and consulting engineer.
The Claimant's lay evidence
In addition to giving her account of how the accident happened, the Claimant in her first witness statement said it was raining heavily, the steps had become very slippery and she had been wearing trainers. She said that Mr Stuart had warned her that the steps were slippery.
In her second witness statement she said that she had not met Miss Tyler until after she (the Claimant) had been discharged from hospital, that when Miss Tyler used to visit her she would ask Mr Stuart to carry her eldest daughter up the steps "because she said she found the front steps slippery" and that Miss Tyler mentioned that she had slipped on the front steps a few times. She also said that having seen Mr Butcher's report, which mentioned the possibility of contamination, nothing had been spilled on the step but she remembered that the step was dirty and had a black smudge by the wall which could be seen on the photographs.
in evidence she confirmed what she had said in her statements. She said she had been sent photographs of the house by Mr Cundall, knew what it looked like and that it was old. She had ascended the steps one foot at a time. She agreed with suggestions that as it was raining heavily the path had puddles in it and was slippery and that steps could be slippery when wet. She did not know what had caused her to slip. She accepted that in most of the neighbouring houses the height of wall in relation to the steps was roughly the same as hers. In fact the photographs show what the position is in other houses. She said she had not considered the steps to be dangerous at time — "It did not seem obviously dangerous at that point".
She was a very straightforward reliable witness doing her very best to tell me the truth.
Mr Stuart was also a straightforward witness doing his best to tell me the truth. In his statement he had described the rain as drizzle. In evidence he said it had been dry at first, then drizzle, then heavy rain. Both in his statement and in evidence he said he had earlier slipped on the middle step when carrying a box up the stairs and had dropped the box. As a result he had warned the Claimant that the steps were slippery. He said that in the aftermath of the fall, when paramedics were present, one of them said he had been to the premises before when an old lady had slipped on the same steps. This something which Ms Tyler also mentioned to Ms Lankester, stating the lady had fallen over the wall.
Mr Stuart said he had continued to use the steps but both the Claimant, Mr Stuart and Mrs Porter told me that following the accident they tended to use the rear entrance. If Mrs Porter was going out via front door Mr Stuart said he would accompany her down the steps. In the Claimant's case because she has used and uses a walking stick or sticks I assume this may have been because using the rear access was easier.
He too said that prior to the accident he had not taken notice of the steps. He said you could see it was a low wall alongside the steps but there was nothing unusual about that. He had not paid much attention to other houses in the street. He said that a neighbour had built up the wall of his house at that point as he did not want his children to fall over but it had not been high enough to prevent an adult going over. The neighbour would appear to have been Mr Tyler.
Mrs Porter gave supporting evidence. She is now getting on in years and was willing to agree with almost everything Mr Pooles for the Defendant put to her. I do not find that her evidence adds to what others have said. Similarly Mr Stephen Drysdale, who had witnessed the accident and whose evidence was read.
I found Ms Lankester a reliable witness who I am sure took care in recording what Ms Kellie Tyler and Mr Tyler told her and did not put anything into their mouths. I regard the statements she prepared for them as fairly representing what she was told by each of them.
Ms Tyler's account as given to Ms Lankester on 13 th January 2011 and recorded in her unsigned statement differs from the statement she later provided to the Defendant. She expressed the opinion to Ms Lankester that the...
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