Gwilliam v West Hertfordshire Hospitals NHS Trust and Others

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Waller,Lord Justice Sedley,The Lord Chief Justice
Judgment Date24 July 2002
Neutral Citation[2002] EWCA Civ 1041
Date24 July 2002
Docket NumberCase No: B3/2001/1705

[2002] EWCA Civ 1041




(His Honour Judge Roger Connor)

Royal Courts of Justice


London, WC2A 2LL


The Lord Chief Justice of England & Wales

Lord Justice Waller and

Lord Justice Sedley

Case No: B3/2001/1705

West Hertfordshire Hospital NHS Trust & Ors

Mr Laurence Marsh (instructed by Messrs Collins) for the Appellant

Mr Richard Furniss (instructed by Messrs Beachcroft Wansbroughs) for the First Respondent

The Lord Chief Justice



The facts in this case are straightforward but, as often happens, despite this the resolution of the legal issues which the case raises is by no means easy. For this reason it is important to begin by clarifying the principles which are involved. As can happen in the course of litigation, the arguments advanced before us as to the nature of those principles were different from those advanced in the court below. In these circumstances it is not surprising that in the court below, His Hon. Judge Connor, sitting at Watford County Court did not adopt what I consider to be the correct approach.


There were two issues which it was critical for the judge to determine. Those issues are:

i) Was the Mount Vernon hospital ("the hospital"), the first defendant, under a duty to the claimant to ensure that she would be reasonably safe while visiting the fair which was being held at the hospital.

ii) If the hospital did owe a duty to the claimant, were they in breach of that duty.


There was a third issue as to whether the plaintiff had proved her loss but, in my view, if she succeeds on the two issues I have already identified, it would be wholly unjust to deprive her of a remedy due to any technical lack of evidence on the question of loss. This is because, prior to the trial, it had been ordered on 29 January 2001 that:

"The issue of the 1 st Defendant's liability under the allegation only that they were under a duty as more particularly set out in para 9 of the particulars of claim … be tried before any issue of quantum."

In addition, immediately prior to giving judgment, the trial judge rejected the claimant's application to call additional evidence as to her loss. The claimant cannot be criticised for the evidence not being available earlier since she was entitled to consider that her position had been properly protected by the order which had been made.



Lord Justice Waller has set out in his judgment a full account of the relevant facts and I only need draw attention to what I regard as being those which are critical. These are as follows:

i) The fair was being held on the grounds of the hospital to raise money for the hospital.

ii) The fundraising manager for the hospital, Mr Andrew Wynne, was an employee of the hospital. He had organised four children's amusement activities for the fair of which one, a 'splat-wall', was provided by Mr Cane, the second defendant, who had been chosen from the local telephone book because he traded under the name 'Club Entertainments', A 'splat-wall' is a category of entertainment which it should have been obvious to the hospital could create danger for those using it if its installation and use was not carefully supervised.

iii) It was Mr Wynne's evidence that, "When organising fund raising events involving the public you have to make sure that insurance is put in hand. This is basic."

iv) Mr Wynne had been told by the finance department of the hospital that, if they had this type of entertainment at the fair, extra insurance cover would be required. Therefore, Mr Wynne made an arrangement with Club Entertainments whereby the hospital paid an extra £100 and Club Entertainments provided the staff for the 'splat-wall'. The hospital was then to have the benefit of Club Entertainments's public liability insurance.


As the judge held, the initial injury to the claimant was caused by the negligence of Club Entertainments. The immediate cause was that her left foot became caught in the covering on the padding in front of the trampette which forms part of the 'splat-wall'. The judge held that the claimant was not warned that she should not attempt to use the equipment or that the equipment was unsuitable for a person of her age. She was not aware of the risk arising from the incorrectly assembled unit. There was no negligence on the claimant's part in failing to jump correctly on the trampette. She had had no instruction in the use of the equipment and cannot have been expected to have the required skill (judgment, page 7).


Club Entertainments agreed to pay the sum of £5,000 to the claimant in respect of damages and costs which sum was accepted by the claimant because Club Entertainments's insurance had expired. The claimant contended (although this was not proved) that, having regard to Mr Cane's financial position, this was a reasonable sum at which to settle her claim.


The negligence on which the claimant primarily relied at the hearing was the failure of the hospital to check whether Club Entertainments was insured. The claimant contended she was entitled to recover the difference between the sum which she would have recovered from Mr Cane, if he had been insured, and the sum at which she settled her claim. However, her allegation against the hospital as pleaded included a substantially broader claim. The relevant part of the statement of her case was in these terms:

" The first defendant as organiser of the fair owed a duty to persons making use of the entertainment provided at the fair to take reasonable care in relation to such provision. In particular the first defendant was under a duty to exercise reasonable care in the selection of persons responsible for operating entertainment devices, such as the 'splat-wall' at the fair. The duty included a duty to ensure that such persons were covered in respect of public liability and not to allow entertainment's at the fair where there was no insurance, alternatively to warn visitors about any entertainments where there was no insurance." (emphasis added)



No doubt because of the way the case was advanced before him, the judge took as his starting point the fact that the only reason there was no insurance was that, while Club Entertainments had had an insurance, this had expired four days earlier and Mr Cane had not appreciated this (see page 12). The judge then proceeded to consider the legal position on what he regarded as being common ground, namely that the claim related to pure economic loss. On that basis, in order to determine whether there was a duty owed to the claimant by the hospital, the judge applied the well known test laid down by Lord Bridge in Caparo Industries Plc v Dickman [1990] 2 App. Cases 605 at p. 617 and 618 and came to the conclusion no duty was owed.


This was the wrong starting point. The correct starting point was s.2 of the Occupiers Liability Act 1957 ("the 1957 Act"). It was not in dispute that the hospital at all times remained in occupation of the hospital grounds where the fair was taking place. Because of the position relating to insurance, the hospital had paid £100 so that the staff operating the 'splat-wall' were the employees of Club Entertainments and not of the hospital, but this did not effect the fact that the hospital remained the occupier and, as such, owed the common duty of care under s.2 (1) of the 1957 Act to the claimant. That duty is defined by s.2 (2) as a duty to take such care as, in all the circumstances of the case, is reasonable to see that the claimant would be reasonably safe in using the premises to which she had been invited. Her permission to be present extended to the use of the entertainments such as the 'splat-wall' provided at the fair.


It was not in issue that Club Entertainments were independent contractors. However, this, as is made clear by s.2 (4) of the 1957 Act, does not mean that the hospital did not continue to owe a duty to the claimant. The language of s.2 (4) is clear. The subsection, so far as relevant, reads as follows:

"a) In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example) —

b) Where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in trusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done." (emphasis added)


It is important to note that s.2(4) is concerned not with the question as to whether there is a duty but whether the duty has been discharged. Furthermore, it is to be noted that s.2 (4)(b) is only an example of the circumstances which can indicate that the duty has been discharged. In addition, the language of s.2 (4)(b) cannot be directly applied to the present situation because here we are not concerned with any "work of construction, maintenance or repair". The statutory example is only capable of having an application by analogy. The important point is that the hospital undoubtedly remained under a duty to the claimant and the judge's conclusion that no duty was owed was incorrect.



The next critical issue is whether the hospital discharged this duty. Although the example in s.2(4)(b) is not directly...

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