Theresa Bates v Snozone (Holdings) Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Farbey |
| Judgment Date | 02 July 2021 |
| Neutral Citation | [2021] EWHC 1828 (QB) |
| Docket Number | Case No: QA-2021-000074 |
| Court | Queen's Bench Division |
[2021] EWHC 1828 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE
ORDER OF HHJ SAUNDERS DATED 18 MARCH 2021
COUNTY COURT CASE NUMBER: E20YY910
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Farbey
Case No: QA-2021-000074
Mr Robert Smith (instructed by Aegis Legal) for the Appellant
Mr Henry Morton Jack (instructed by DAC Beachcroft) for the Respondent
Hearing date: 25 May 2021
Approved Judgment
Introduction
This is an appeal, brought with the permission of Stewart J, against the order of HHJ Saunders sitting in the County Court at Central London on 18 March 2021. By that order, the judge dismissed the appellant's claim for damages for personal injury (a fractured leg) sustained on the respondent's indoor ski slope at Milton Keynes. The judge rightly recognised that both the parties and their respective witnesses adopted an exemplary approach to the litigation. In particular, I agree with the judge that the honesty and thoughtfulness of the appellant shines through.
Before me, as below, Mr Robert Smith appeared for the appellant and Mr Henry Morton Jack appeared for the respondent. I am grateful to them for their helpful submissions.
Background
On 24 January 2016, the appellant and her husband were undertaking group skiing tuition at the Xscape, Snozone indoor slope in preparation for a skiing holiday. At around 3.50 pm, the appellant fell while descending the learner slope. She suffered severe pain in the left leg before being taken by ambulance to the Milton Keynes Hospital and then (two days later) to the John Radcliffe Hospital. She underwent surgery for a complex fracture of her leg, which included the fitting of reconstructive locking plates. Discharged home after 12 days, she was not able to return to full-time work for 12 months. Long-lasting consequences include wasting of the left knee.
On 12 December 2018, the appellant issued a claim against the respondent in the County Court seeking damages for negligence and breach of contract. A defence filed on around 11 April 2019 denied liability for the accident and denied that any breach of duty had caused injury. A reply to the defence dated 19 June 2019 brought the pleadings to a close.
By order dated 26 June 2019, each party was given permission to rely on expert orthopaedic evidence and on “expert ski-teaching” evidence. The appellant relied on the medical report and addendum report of Mr Simon T Moyes, a consultant orthopaedic surgeon. He concluded that the appellant's injury was likely to have occurred as a consequence of valgus bending. He was asked to give his view as to whether the appellant's injury was “more consistent with her account as to the accident circumstances or the [respondent's] account.” He replied: “The injury suffered by the [appellant] is more consistent with her account than with the [respondent's] account.” No medical evidence was filed by the respondent.
The skiing evidence gave rise to difficulties. By order dated 28 July 2020, a joint statement from the two ski-teaching consultants instructed respectively on behalf of each party was excluded from the evidence. The judge had before him a second joint statement dated 7 September 2020. By that time, the ski consultants were better informed of their role as experts. Their joint statement accepts and highlights the limits of their ability to assist the court with the factual history of how the claimant came to fall.
On 11 November 2020, the parties submitted a case summary and an amended List of Issues. The trial started on 23 November 2020 and lasted three days. The judge heard oral evidence from the appellant, her husband and Mr Craig Robinson who was the ski instructor taking the lesson at the time of the fall. Another of the respondent's employees, Mr Dan Moreton, also gave oral evidence. Mr Moreton had not seen the fall but was able to comment on the respondent's health and safety procedures in his capacity as an Operations Support Manager.
Judgment was reserved. In reaching his conclusions, the judge had the benefit of full skeleton arguments from both parties, a supplementary skeleton argument from the respondent and written closing submissions from the claimant.
The judgment — running to 84 paragraphs — was handed down on 15 March 2021. The judge had circulated a draft to the parties in advance. In a document dated 9 March 2021, the claimant had put the judge on notice that he would be invited on handing down the judgment to clarify a number of matters. The judge would be asked to provide to the parties certain parts of his notes of the evidence, to give further reasons for rejecting the claimant's case and to answer some specific questions about the evidence. The judge understandably refused to become involved in these requests. The judge's reasons for dismissing the claim were set out in his written, handed down judgment and could not be supplemented – by invitation of a party or otherwise – by further ex tempore reasons at an oral hearing. The request to the judge to produce his notes of the evidence is puzzling.
In his judgment, the judge set out that the claim had been brought in negligence, contract and under the Occupiers' Liability Act 1957. He observed that the duties owed by the respondent to the appellant in each cause of action were equivalent. Citing relevant case law, he held that, in the context of this case, the burden lay on the appellant to prove that (a) the respondent exposed her to a foreseeable risk of injury over and above the inherent risk of injury in the sport of skiing and (b) the respondent failed to take reasonable care. The judge's summary of the legal position is not in dispute. The appellant does not argue that he has made any misdirection of legal principle. As for the facts, the judge stated that the principal matter for his determination was “the mechanics leading up to the accident itself.”
The judge observed that the appellant was aged 57 at the date of the accident. She had not skied for 35 years. She had previously undertaken only three skiing holidays. She was, as Mr Robinson described her, an “advanced beginner.” The purpose of taking a series of four lessons was to improve her skiing skills and refresh the techniques that she had learned many years before in advance of a planned skiing trip abroad.
At the time of the accident, the appellant was taking part in lesson 4 which had begun at approximately 3 pm and was due to last until 4 pm. She was skiing on the learner slope. She had already made approximately six runs down from the top of the slope.
The appellant's evidence before the judge was that lessons were taking place on both sides of the learner slope which was in use by a mix of snowboarders and skiers. It appeared to her to be “just a total free for all.” Instructors were concerned only with their own lessons: there was no one in charge of ensuring that the slope as a whole was safe. She said that the overrunning of lessons added to the overcrowding on the slope itself, as did certain features of the slope's defective infrastructure which I shall not set out but which included a broken down lift. She felt that there was “no clear slope to ski down.” She had waited for a clear run before starting to ski down the slope for her final run of the day. As she was completing a turn to traverse the slope, an out-of-control snowboarder almost caused her to fall and then fell right near her. As a result, she wobbled and the end of her ski clipped a “snowdrift” adjacent to a padded pillar which divided the learner slope from a second slope. Her case was that (in simple terms) snow had accumulated like a drift around the pillar because the respondent had not properly smoothed down the snow on the learner slope by “grooming” the snow in accordance with its own timetable for doing so.
The clipping of the snowdrift had caused her to wobble and fall. The weight of her right leg landed on the left leg and pushed her leg into a dip that had at some stage formed in the snow as a result of the movements of snowboarders which had disturbed the surface of the slope.
The appellant's husband had never previously skied but took part in the four lessons with a view to accompanying the appellant on the holiday. He did not witness the accident but said that the learner area was busy.
Mr Robinson's account of the mechanics of the accident was that the appellant had skied directly into the pillar. The judge rejected this part of his evidence. Mr Robinson said that he did not recall any problem on the slope. He did not recall anything that might have caused the appellant to fall. His recollection was that the slopes were “even.” He described the appellant as being “nervous” about other people on the learner slope and about the slope being busy. He had to explain to her that she could not afford the luxury of waiting for a clear run because the environment of the indoor slope was the same environment she would experience on holiday.
The judge summarised the respondent's case in the following terms:
“the defendant says that… this was a simple skiing accident considering the inherent risks occurring in skiing and that, in any event, the slope was well-maintained and kept safe such that it could not be in breach of its admitted duty of care.”
The judge concluded:
“55. The…evidence leads me to the view that the Claimant was a naturally nervous skier in view of her level of experience (demonstrated by her comments to Mr...
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