Hufton v Somerset County Council [2011] EWCA Civ 789. The claimant was a pupil at the defendant’s school. She suffered an injury to her knee when slipping on water on the wooden floor of the assembly hall when re-entering the building during the morning break.

While it was not raining at the commencement of the break period, it did so approximately seven minutes later.

The claimant’s case was that the school negligently permitted its pupils to walk directly into the assembly hall thus depositing water on the floor of the assembly hall. The defence alleged that on wet days pupils were not permitted to enter the school hall in the manner of the claimant, and that prefects were positioned by the fire exit doors to prevent this happening. They had a system whereby if it was raining a sign was placed by the doors to that effect.

Unfortunately, on the day of the accident, while there was no rain at the commencement of the break period, there was during it, and the claimant managed to enter the building before the steps mentioned above were taken to prevent such access.

The defendants could show that a risk assessment had taken place.

Lord Justice Jackson, giving the only judgment in a unanimous decision, rejected the appeal of the claimant from the dismissal of her case by the judge at first instance. He underlined that there is not an absolute duty on the part of an occupier to prevent any accident from ever occurring on their premises.

In this instance the court would not interfere with the trial judge’s finding that a reasonable system was in place to prevent access to the hall floor in wet weather.

Furthermore, his lordship rejected the second strand of the claimant’s appeal – that the defendants had been negligent in failing to clear up the wet floor before the claimant stepped on it.

They cited Ward v Tesco Stores Limited [1976] 1WLR 810, a leading case in which the Court of Appeal found for the claimant against the supermarket primarily on the basis that the yoghurt on which she slipped was one of approximately 10 spillages a week that occurred on the floor of the particular store. The school had had the floor in place for many years and, since the risk assessment, a period of six years had passed without a similar incident. Ward did not assist the claimant.

Part 36 of the CPR and inflated claims for damages

Fox v Foundation Piling Limited [2011] EWCA Civ 790

After the decision in Carver v BAA [2008] EWCA Civ 412, there has been much confusion and much litigation in respect of the consequences of part 36 of the Civil Procedure Rules. In this case, Jackson LJ gave the lead, and only, judgment in a unanimous court.

The claimant suffered injury in an accident in 2003 during the course of his employment, as a result of which he suffered a disc prolapse in his lumbar spine. In April 2008 he submitted a schedule of loss, claiming damages of £280,000. In September 2008 the defendant made a CPR part 36 offer to settle in the sum of £63,000 gross.

This offer was subsequently withdrawn and a new offer of £31,702 was made. Video evidence was disclosed showing the claimant able to walk normally and with generally good mobility. Medical experts for the claimant and defendant, while not in agreement, limited the accident-related symptoms to a period of two years and one year respectively.

The case settled in the sum of £31,702 against the net part 36 offer of £23,550. The judge at first instance held that the defendant was the successful party and ordered the claimant to pay the defendant’s costs in respect of the period following the later CPR part 36 offer.

On appeal, the defendant conceded that the claimant should be regarded as the successful party. Therefore, as his lordship pointed out, the claimant should recover his costs from the other side pursuant to rule 44.3(2)(A) of the CPR. The next step is to consider whether there should be any adjustment to the costs order to reflect issues on which the successful party has lost, or other circumstances.

At this point, his lordship’s apparent exasperation with the post-Carver situation is evident. His view is that unless a claimant has been dishonest, he should recover his costs.

The fact that the claim had been exaggerated from a schedule claiming £280,000 to an ultimate settlement of £31,702 was of no consequence. The defendant could have made a modest part 36 offer if they had wished to do so. This would have provided them with some costs protection. His lordship found that there is now an ‘unwelcome trend’ resulting in ‘a swarm of appeals to the Court of Appeal about costs, of which this case is an example’.

His expectation is that the ‘forthcoming amendment to rule 36.14 will point the way to a more clear-cut approach to the costs rules in future’. It will rid part 36 of the accumulated authorities that have disguised its original intention to provide a clear and simple framework within which parties can settle litigation. We should, therefore, look forward to the introduction of the amended rule on 1 October 2011.

Responsibility for the highway

Dalton v Nottinghamshire County Council [2011] EWCA Civ 776

Surprisingly, as Jackson LJ was sitting, Tomlinson LJ gave the only judgment in a unanimous court in respect of an appeal by the county council against the finding of a judge at first instance that it was responsible for injuries suffered by the claimant who stumbled and fell while walking across a pedestrianised area known as ‘The Square’, in Beeston town centre in Nottinghamshire.

The judgment reminds us of the steps that have to be proven in a Highways Act case.

Section 41 of the Highways Act 1980 places a responsibility on the highway authority to maintain the highway. ‘Maintenance’ includes repair. The law in this area is clearly stated in a previous judgment of the Court of Appeal (Mills v Barnsley Metropolitan Borough Council [1992] PIQR 291) and, in particular, in the judgment of Steyn LJ.

The three factors the claimant has to prove are:

i) That the highway was in such condition that it was dangerous to traffic or pedestrians in the sense that, in the ordinary course of human affairs, danger may reasonably have been anticipated from its continued use by the public; ii) The dangerous condition was created by the failure to maintain or repair the highway; andiii) The injury or damage resulted from such a failure.

The appeal court made it quite clear that the highway authority did not have to provide ‘a bowling green’ level surface free of irregularities.

Once the claimant has proved these three factors, then a section 58 defence may arise. This compels the authority to show that it has, in all the circumstances, taken such care to secure that the part of the highway to which the action relates was not dangerous for traffic.

In looking at the defence, the court will consider a number of factors including the character of the highway, the appropriate standard of maintenance, the state of repair that a reasonable person would have expected, whether the highway authority knew that the condition of the highway was likely to cause danger and whether, if a repair could not have been expected in a short duration, warning notices of its condition had been properly displayed.

In Mrs Dalton’s case, the court found that the offending part of the highway consisted of a loose and wobbling paving block that caused her to overbalance and fall. The block was ‘loose, unstable, wobbling, proud of its neighbours and, moreover, its height relative to its neighbours was capable of being altered’. The judges made it clear that this was not a simple case of a difference in level between 2 adjacent surfaces.

His lordship stated: ‘One does not expect the structure under foot to be shifting in nature.’ This was the key to the case.

The claimant was also aided by the fact that the defendant had graded the repair as a ‘category 1’ type. His lordship held that: ‘Where a council has an inspection and maintenance regime being couched in terms of the identification of an immediate or imminent hazard, the identification by the council of defects so defined is obviously powerful evidence of the presence of a danger against the risk of which the council can reasonably be expected to take steps to safeguard the public.’

This is a critical point. The defendant’s documentation must be obtained and analysed in respect of how it categorises the repair, as the Appeal Court properly advises that the higher the categorisation the faster the repair ought to be completed.

In this instance it was understandable that the defendant had so categorised the defect in that it was in the main square in the centre of town and received high pedestrian and vehicular usage. ‘Members of the public… should not expect to find paving stones in a main square loose.’

This hazard went beyond merely a tripping hazard. The fact that the block could move made the risk of a pedestrian stumbling far greater. The defendant’s assessment of the defect simply underlined the need for swift action.

Lady Justice Smith

In recent weeks, personal injury practitioners have sadly seen the retirement of Lady Justice Smith, a voice of considerable reason who gave leading judgments on many PI issues.

For me she most memorably punctured the many conceits flown by Lord Phillips in his attempt to create a policy decision in the pleural plaques case of Rothwell v Chemical & Insulating Co. Ltd [2006] EWCA Civ 27.

Prior to the publication of his report on civil litigation costs, Jackson LJ had given judgment in only a handful of personal injury cases. However, in recent months he has featured with some regularity. One senses he may be stepping into the elegant and experienced shoes of her ladyship.

While some might comment that perhaps more exposure to personal injury cases before writing his report could have been of value, it is pleasing to see the gap in his judicial knowledge being filled at this time.

Simon Allen is joint head of the national personal injury department at Russell Jones & Walker and managing partner of the Sheffield office