Gonzalez v Pointing
| Jurisdiction | England & Wales |
| Court | Court of Appeal (Civil Division) |
| Judge | Lord Justice Flaux |
| Judgment Date | 30 March 2017 |
| Neutral Citation | [2017] EWCA Civ 347 |
| Docket Number | Case No: B3/2015/3841 |
| Date | 30 March 2017 |
Lord Justice Flaux
Case No: B3/2015/3841
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CITY OF LONDON AND MAYOR'S COURT
HIS HONOUR JUDGE LAMB
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr John Cherry QC and Mr Paul Stewart (instructed by Lewis Neda Law) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
This is a renewed application for permission to appeal made at an oral hearing following refusal on paper by Floyd LJ of the defendant's application for permission to appeal against the order of HHJ Lamb at the City of London and Mayor's Court in favour of the claimant. On 4 March 2011 the claimant, a Columbian lady now aged 58, was in the vicinity of a kiosk selling handbags and the like outside Russell Square tube station operated by the defendant, when she sustained injury consisting of a deep laceration to her left forehead. She was taken to hospital where the wound was sutured.
The kiosk is described by the judge in paragraphs 3 and 4 of his judgment and can be seen in one of the videos provided to the court, which I have viewed. As the judge described it, it is rectangular. At the front end of the two narrower sides are rectangular canopies hinged at the roof level, which when folded outwards and upwards through 90 degrees, create a dry sheltered working area around the kiosk. Once they are folded upwards, the canopies are held in place by hydraulic rams, not unlike those which hold a car boot open. The three rectangular canopies, when opened, create two small rectangles in the surrounding shelter. These can be filled with four triangular flaps hinged on the edges of the three canopies. The four flaps are folded up and held in position by mechanical locking devices. The dry sheltered working area around the kiosk is then complete on three sides.
The claimant's case was that she was struck by one of the flaps on the left-hand side looking towards the kiosk from the tube station. She sought damages for personal injury caused by the defendant's negligence. The only issue before the judge, as he described it at paragraph 8, a single agreed issued of fact, the outcome of which he was told would resolve all issues of liability was, "Did the claimant sustain injury to her head when one of the flaps fell on her head as she walked under the canopy." The claimant, whom the judge found was a truthful witness, gave evidence and the judge accepted the genuine nature of her claim. As he said she was unable to say precisely how the injury was sustained. All she could say was that she was there in front of the kiosk, something hit her head and she ended up with a cut and eight stitches. As the judge put it, the basic simplicity of the case remained, "I was there under the canopy. I left the scene with a bleeding wound to my left forehead."
A Mr Twydell, who was looking after the kiosk whilst the defendant was on holiday, gave evidence for the defendant. He said that he had lifted the front canopy into position, not touched any of the flaps, retrieved the keys from the kiosk, went to his van and returned about four minutes later to find the canopy in the same position without the flaps down. He saw a commotion around the claimant, who was having her wound attended to. A Mr Wheelhouse, who ran a neighbouring kiosk, gave a statement which was read to the court. He kept an eye on the kiosk when Mr Twydell left it open and he said he did not see...
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Moorehouse v Governor of Wheatfield Prison
...or limits of the role, of inferences of fact in the judgment. 41 The second case to which we were referred was Gonzalez v. Pointing [2017] EWCA Civ 347. This was an application for leave to appeal. The plaintiff was injured outside the Russell Square tube station in the vicinity of a kiosk......
