Mrs Ruth Geary v J D Wetherspoon Plc
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Coulson |
| Judgment Date | 14 June 2011 |
| Neutral Citation | [2011] EWHC 1506 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Claim No: 0MA04528 |
| Date | 14 June 2011 |
[2011] EWHC 1506 (QB)
IN THE HIGH COURT OF JUSTICE
NEWCASTLE UPON TYNE DISTRICT REGISTRY
Newcastle Crown Court
Quayside, Newcastle Upon Tyne, NE1 3LA
The Honourable Mr Justice Coulson
Claim No: 0MA04528
Mr Winston Hunter QC & Mr Marc Willems (instructed by Ralli Solicitors) for the Claimant
Mr William Norris QC & Ms Camilla Church (instructed by Beachcroft LLP) for the Defendant
Hearing dates: 11 th & 12 th May 2011
A. INTRODUCTION
Traditionally, the law has always distinguished between, on the one hand, the duties owed by occupiers to lawful visitors to their premises and, on the other, the much more limited obligations, if any, that might be owed to trespassers. Perhaps the most celebrated example of this difference was given by Scrutton LJ in The Carlgarth [1927] P93, 110:
"When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters, you invite him to use the staircase in the ordinary way in which it is used."
In the more recent decision of the Court of Appeal in Keown v Coventry Healthcare NHS Trust [2006] EWCA Civ 39, Longmore LJ observed that that case, which involved an 11 year old boy suffering severe brain damage as a result of falling from a fire escape, was "the closest one will come in real life" to Scrutton LJ's example.
Tragically, the present case is even closer to Scrutton LJ's illustration. On the evening of 29 March 2007, the claimant, Mrs Ruth Geary, had been drinking with some work colleagues at The Union Rooms, a pub in Newcastle City Centre, close to the station, which is owned and operated by the defendant. The premises had formerly been a gentleman's club. One of the original features of the building, which was deliberately left untouched by the refurbishment, was a grand open staircase in the centre of the building, with sweeping banisters on both sides, rising to a half-landing and then turning upwards on either side to the first floor. On her way out with her colleagues, the claimant hoisted herself onto the left banister with the intention of sliding down it. Unfortunately she fell backwards and landed on the marble floor just less than 4 metres below. She sustained a fracture to her spine, resulting in tetraplegia.
In March 2010, the claimant issued proceedings against the defendant, claiming damages for personal injury. The principal claim was put by way of negligence, that is to say as a breach of an alleged common law duty of care, although there was an alternative claim for breach of the Occupiers' Liability Acts 1957 and 1984. At the close of the evidence, Mr Hunter, on behalf of the claimant, indicated that the alternative claim under those Acts added nothing to the common law claim, although both leading counsel agreed that a number of the authorities which dealt expressly with the position under the Occupiers' Liability Acts were relevant to the issues of negligence.
The trial on liability took place on Wednesday 11 and Thursday 12 May 2011 at Newcastle Combined Court Centre. Despite the volume of documents (the bundle consisted of two lever arch files and there were three volumes of authorities) and the number of witness statements (32 served on behalf of the claimant, although many repeated or endorsed earlier statements; 8 on behalf of the defendant), the issues between the parties were relatively straightforward. In essence, they concerned the existence or otherwise of the duty of care alleged by the claimant. They can perhaps be summarised as follows:
a) Was there a voluntary assumption of an obvious and inherent risk by the claimant, in circumstances which would negate any liability on the part of the defendant?
b) Was there an assumption of responsibility by the defendant to the claimant?
As a result of the efficiency of leading counsel, the trial, which was estimated to last three days, only took two. However, in deference to the arguments and the considerable volume of authorities that were cited, it was necessary for me to reserve judgment. This, then, is the Judgment on the issues of liability in this case.
B. THE REFURBISHMENT WORKS
The premises were originally built in the late 19 th century as The Union Club, a gentleman's club in an ornate, French style. They are typical of the numerous Georgian and Victorian stone-clad buildings which make the centre of Newcastle so special. Moreover, the splendour of the former Union Club is not limited to its exterior; inside it is a typically opulent Victorian clubhouse, centred round a stone staircase leading up to a half-landing and with two returns on either side going up to the first floor.
The banisters on either side of the central staircase rising to the half landing are lower than normal. They are at a height of between 86 and 88 centimetres, measured from the step to the top of the banister. This means, for a man of average height, that his arm is fully extended when his hand is on the top of the banister. The distance from the half-landing to the marble floor beneath is about 3.45 metres. The full height of both sections of the staircase up to the first floor is just less than 7 metres.
Despite the august nature of its early membership, The Union Club, in common with other such gentlemen's clubs in the larger provincial cities of England, fell on hard times. It was bought by the defendant to be refurbished into a large public house. To that end, on 10 July 1998, the defendant obtained Listed Building Consent for the refurbishment works from Newcastle City Council.
It appears that the staircase and the banisters were the subject of specific consideration at the time of the refurbishment. There was a tension between English Heritage, who did not want to see any changes to the staircase at all, and the Building Control Department of the City Council, who were concerned about the low height of the banisters. This tension is identified in paragraph 7 of the statement of Mr Alistair Broome, the defendant's then development manager, in these terms:
"From these meetings I do recall there being discussions relating to the height of the balustrade and banisters on the staircase which was a significant feature of the building. The building held listed status and I was made aware at an early stage of the refurbishment that both the local authority planners and English Heritage were being very demanding regarding our treatment of all aspects of the refurbishment, the staircase and banisters being no exception to this. I recall being aware that the banisters were below the minimum height allowed under Building Regulations at the time. This was a concern to me and to our Health and Safety consultants, Perry Scott Nash, from a safety point of view. I do recall that we applied through the Architects on more than one occasion to raise the height of the banisters and balustrades to the minimum required under Building Regulations but those plans were rejected on each occasion and it was made clear by word of mouth to the Architects that both the planners and English Heritage required the banisters to remain at the original height and in the original state."
Although, during the trial, Mr Hunter complained about the absence of documents in the bundle confirming this history, I understand that the defendant made available to the claimant for inspection all of the documents relating to the proposed refurbishment in 1997, and that only a small proportion were included in the trial bundle. More importantly perhaps, it seems to me that those documents which were included support the gist of what Mr Broome told me, namely that the height of the banisters was a concern but that, in the end, the Council was prepared to waive the requirement that the banisters be at a greater height.
This can be seen in the following exchanges:
a) On 27 July 1998, the defendant's architects, Lawrence Tring Architects, wrote to their Environmental Health consultants, Perry Scott Nash Associates ("PSNA"), in these terms:
"We are advised by Building Regulations that it will no longer [be] necessary to change the existing balustrade, despite it not conforming to the correct height. The Planners obviously do not wish us to change it and so it is our proposal to leave it at 770 mm above goings and 900 mm above floor level at first floor landing. Could I please have your comments by return."
b) On 31 July 1998, PSNA, who were and remain the defendant's professional advisors on all matters of Health and Safety, replied in detail. They said:
"Further to your letter received on 28 July regarding the height of handrails to the existing balustrading at the above I would advise that provided the Building Control Officer is happy to accept a relaxation of the Building Regulations in respect of handrail and guardrail heights there is no specific legislation in Environmental Health terms which stipulates handrail heights per se.
The Workplace (Health, Safety & Welfare) Regulations 1992 require all staircases to have a "suitable and sufficient" handrail or guard-rail.
The associated ACOP advises that an open side to a staircase should be securely fenced, consisting of a guard-rail at an upper height of 900 mm and a lower rail.
No guidance is given in the ACOP on handrail heights to be provided on at least one side of every staircase.
Guidance is given that where a person can fall 2.0 metres or more secure fencing be provided consisting of a top rail of at least 1100 mm above the surface from which people can fall except where lower fencing has been approved by the LA under Building Regulations.
The balustrading to the landing should be in-filled sufficiently to prevent persons or objects falling through. The minimum is an intermediate guard rail at approximately 450 mm...
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