Patrick Joseph Hannon v Hillingdon Homes Ltd
| Jurisdiction | England & Wales |
| Judge | HH Judge Anthony Thornton QC |
| Judgment Date | 09 July 2012 |
| Neutral Citation | [2012] EWHC 1437 (QB) |
| Docket Number | Case No: OUD00241 |
| Court | Queen's Bench Division |
| Date | 09 July 2012 |
[2012] EWHC 1437 (QB)
IN THE HIGH COURT OF JUSTICE
Queens Bench Division
Transferred from the Central London County Court
HH Judge Anthony Thornton QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Judge Anthony Thornton QC
(sitting as a Judge of the High Court)
Case No: OUD00241
Mr Colm Nugent instructed by Messrs Bird & Lovibond appeared for the Claimant
Mr Muhammed Haque instructed by Clyde & Co appeared for the Defendant
Introduction
This personal injury claim arises out of an injury that Mr Patrick Hannon ("Mr Hannon") suffered when he fell whilst carrying out maintenance work to the central heating and hot water boiler at a house owned by Hillingdon Homes Limited ("Hillingdon") on 18 February 2008. The claim was started in the Uxbridge County Court on 21 July 2010 and was transferred to the Central London County Court by an order dated 19 October 2010. On 1 June 2011, the district judge ordered that liability would be tried first. The action was transferred to the Royal Courts of Justice for trial in the Queen's Bench Division of the High Court.
Mr Hannon was 46 on the day of his fall. For some years before 2005 he had worked as an electronics technician but, following his redundancy in that line of work, he became a heating engineer. He had been working for the T Brown Group Ltd ("TBG") for about two years before his accident. TBG are plumbing and heating engineers and much of their work involved repairing heating in local authority housing. TBG had a long-term maintenance contract with Hillingdon which is wholly-owned by the London Borough of Hillingdon ("LBH") and is the corporate vehicle through which that local authority owned and managed its housing stock. TBG's maintenance contract involved it in maintaining and repairing the central heating systems of many of LBH's properties and it carried out that work at properties it was directed to by Hillingdon.
Mr Hannon was under contract to TBG and who instructed him where to work. He was paid on a daily basis when he was working and he always worked on his own. On 18 February 2008, he was sent to a house at 50 Hoppner Drive, Hayes, Middlesex ("the property") on the instructions of TBG to deal with a long-standing problem with the tenant's boiler which had not been working for some time. A week earlier, on 11 February 2008, Mr Nigel Knowles, a plumber and gas fitter employed directly by TBG, attended at the property and identified the need for the system to be power flushed. He reported this to the maintenance department of the LBH who notified TBG that this work should be carried out by that company under its long-term maintenance contract as a matter of urgency.
TBG put this work into their current work schedule and instructed Mr Hannon to attend the property for that purpose, working as usual on his own. Mr Hannon arrived at the property on 18 February 2008. The property is a two-storey property. The boiler was located on the ground floor and the hot water cylinder on the upper floor and the two floors were connected by a flight of stairs which ran from a landing on the upper floor to the open plan lower floor. The staircase formed part of the lower floor and was constructed into the side wall of the open plan ground floor room. As originally constructed, the free side of the staircase had been constructed with a bannisters consisting of a newel post and spindles located in each stair tread and joined at their head by the bannisters rail. One obvious function of this bannisters arrangement was to act as a safety device to protect anyone going up or down stairs from falling, sliding or slipping off the edge of the staircase into the ground floor living area and to provide a support to help arrest someone who would otherwise fall down the staircase. Unfortunately for Mr Hannon, the bannisters on the open side of the staircase had been removed in their entirety some twenty years earlier leaving an open staircase on that side. A bannisters, without spindles or other supports, had been fixed into the wall on the closed side of the staircase. The removal of the bannisters on the open side had, no doubt, been done for aesthetic reasons to enhance the open aspect of the ground floor.
The power flushing work that Mr Hannon had been sent to undertake involved him moving on occasion from the boiler downstairs to the cylinder upstairs and vice versa. He had been working upstairs for some time with the boiler working downstairs. Whilst working, he heard a loud noise downstairs which sounded like a possible problem with the boiler. He understandably moved as rapidly as possible down the stairs and, whilst descending, his foot slipped on approximately the third stair up from the ground towards and over the unprotected edge of the step it was on. He was, as instructed, wearing his working boots. He instinctively reached for the handrail to check himself and, before he could take avoiding action, he toppled over sideways into the open plan area beside the staircase.
Mr Hannon fell heavily and awkwardly and seriously injured his left ankle. Had the bannisters been in place, Mr Hannon would have checked himself without difficulty and would not have fallen or injured himself. He brings this claim against Hillingdon as the owner of the property and as the landlord with repairing obligations for the structure of the property. The claim is brought in negligence and under the Defective Property Act 1972 (" DPA"). Hillingdon denies liability on the grounds that Mr Hannon should not have embarked on the power flush at that property given the absence of bannisters and the danger to him that that absence gave rise to. He was, on that basis, the author of his own misfortune and Hillingdon did not cause this accident. Hillingdon also contend that if Mr Hannon is able to show that it is in principle liable to him, he is guilty of a high degree of contributory negligence in undertaking the work and in the manner in which he came down the stairs and attempted to arrest his slide. Hillingdon's third, and principal, defence to the claim is that it was not negligent and it has a defence to the claim under the Defective Property Act 1972 (" DPA"). These two defences are, to some extent, dependent on a possible construction of the DPA to the effect that Mr Hannon has to show that Hillingdon was aware, or should have been aware, of the fact that the staircase had had its bannisters removed and had then failed to reinstate them.
There are, therefore, three issues to be resolved. These are whether the accident was caused by the absence of a bannisters or by Mr Hannon's error in undertaking work at the property in its then condition, whether any liability that can be proved should be discounted as a result of Mr Hannon's contributory negligence and whether Hillingdon is liable to Mr Hannon under the DPA.
Issue 1—The cause of Mr Hannon's injury
(1) Evidence.
Evidence about Mr Hannon's injury was given in a witness statement and in oral evidence by Mr Hannon and by Mr Mark Scrutton who was Mr Hannon's manager at the time of his accident. Evidently, Mr Hannon was given some training when he started with TBG which was concerned with how he should conduct himself at work and how to behave in people's houses when undertaking boiler maintenance. Mr Hannon particularly remembered that it was stressed that all TBG personnel had to wear their work boots with steel toecaps whenever and wherever they were working and that it was a very serious infringement of their contract with TBG to take their boots off whilst in a customer's house. He was also trained to undertake a dynamic risk assessment of every site before starting to work. The object of this was to identify all reasonably foreseeable risks that a particular job might encounter and to work round them. There was nothing in the training about the need to be aware of staircases with no bannisters on one side.
Mr Scrutton described Mr Hannon as an exceptionally hard worker who was both reliable and competent. Mr Hannon remembers being aware of the absence of bannisters whilst working in the property but he did not consider this dangerous and the thought never occurred to him that he should report the absence of bannisters before starting work on the central heating system. Mr Scrutton and Mr Nigel Knowles, a plumber and gas fitter employed by the LBH and called as a witness by Hillingdon both agreed with Mr Hannon that it was inconceivable that he could or should have declined to work at the property until bannisters was installed. It was noticeable, however, that Mr Harris, the LBH's head of repairs who also gave evidence, stated that whereas before Mr Hannon's accident, the LBH would not have stopped their operatives from working at a council property if the staircase lacked bannisters, following Mr Hannon's accident, LBH operatives were informed that in the rare case where they were to work at a property whose staircase was missing bannisters, they should decline to work there and notify LBH who would arrange for the missing bannisters to be filled in before work was undertaken in the property. Since that would be regarded as an emergency, the necessary work would be arranged and carried out within 48 working hours of LBH being notified of the problem.
Mr Hannon remembered being conscious of the absence of the bannisters on his left hand side as he ascended the staircase when he was getting ready to start the power flush of the system. He had started the boiler downstairs and then spent a considerable time upstairs working at and around the hot water cylinder. He thought he had been upstairs for several hours. He said that his training and his common sense as a heating engineer ensured that if he sensed there was...
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