Slater v Buckinghamshire County Council, Stigwood and Norwich Union PLC [2004]

FACTS:-

At about 8 am on 28 August 1996 the Claimant , Paul Slater, a 25 year old man suffering from Down’s Syndrome, was knocked down by a car when crossing the road outside the house where he lived with his parents. He suffered catastrophic injuries, which have rendered him tetraplegic and in need of 24 hour care. It is not suggested that any blame attached to the driver of the car which struck him.

Since August 1991 the Claimant had spent every weekday at Hillcrest Day Centre which was operated by Buckinghamshire County Council, the First Defendant. He was taken there each weekday by minibus and brought home in the same way. He was picked up at 8 am and set down on return at about 4.20 pm. The minibus was owned and operated by Mr Stigwood, the Second Defendant, who provided both the driver and a person as “escort” for the disabled passengers.

On the day of the accident a Royal Mail van was parked near the Claimant’s house. It had been parked half on and half off the pavement outside numbers 207 and 209 thereby reducing visibility to the right for a pedestrian crossing the road from the pavement outside number 209.

Boundary Road, the Claimants road, is a single carriageway, with a 40 mph speed limit. At that time of day it was busy road with traffic travelling in both directions. The mini-bus, which came to collect Paul, arrived as usual from his left, stopping on its nearside on the opposite side of the road to the Claimant’s house. Passengers being carried in it obtained access by way of a door on its nearside. It stopped partly on the carriageway and partly on the far pavement.

The escort on the mini- bus that morning was Mrs Brooks. She knew the Claimant well. She walked into the middle of the road behind the coach and put her hand up and said “Stay there Paul” as there was a car coming along behind them. She than saw another car and warned Paul again, but he had already started running out. He rushed out from behind the Royal Mail van into the path of a car that had no opportunity of avoiding hitting him.

The Claimant, by the Official Solicitor, claimed damages for negligence against both the First and Second Defendant. It was alleged that one or other or both of them had failed in their duty to take reasonable case not to expose the Claimant to the risk of foreseeable injury during his collection and transportation to the day centre. In particular it was alleged that an unsafe system for collecting him had been put in place, exposing him to foreseeable risk of harm. Both the Defendants deny owing a duty to take reasonable care not to expose the Claimant to such a result but each denied any breach of that duty.

Justice Morland found in favour of the Defendants as negligence had not been established. According to his Lordship the Claimant had reached a level of independence and road safety competence so that he was able to cross Boundary Road on his own and reach the pick up point with the minibus without his being exposed unreasonably to the risk of foreseeable injury even in the rush hour.

The Claimant appealed the decision in the Court of Appeal Civil Division before Brooke, Jonathan Parker and Keene LJJ.

HELD:-

Lord Justice Keene addressed both of Ms Gumbel QC’s, on behalf of the Claimant, two submissions in substantially detail. Ms Gumbel attacked Justice Mortlands conclusion firstly on the ground that the neither of the Claimant nor Defendants pleadings contended the competency of the Claimant’s ability to cross Boundary Road on his own at that time of day when it was particularly busy.

Lord Justice Keene could not accept this; the judge had to take account of the evidence as it came out at trial, which led to the conclusion regarding the Claimant’s road safety competency. He agreed that whilst it would have been tidier if the pleadings had been formally amended, but since the parties at trial clearly regarded the Claimant’s safety competency as a live and indeed vital issue it would have been wholly artificial for the judge to assumed that it was not in issue.

Miss Gumbel’s next submission was that paragraph 99 of the judge’s conclusion was contrary to the evidence. She took the court through a number of passages in witness statements and the transcripts of the oral proceedings at trial, seeking to establish the proposition. She argued that not merely was there evidence that it was unsafe for the Claimant to cross the road at that particular time but that no witness gave evidence that he was competent to cross it at that very busy time of the day. The fact that he had done it without injury many times before did not show that he was not at risk when so doing.

She argued that the system that the Defendant’s had set up should not have allowed the Claimant to cross the road at such a time without a responsible adult assisting. Moreover, the arrangements were haphazard, allowing him sometimes to be picked up on one side of there road, sometimes on the other and sometimes from the house. She drew the courts attention to the Specification of Service and the Code of Conduct, one of the contract documents forming part of the agreement between the First and Second Defendant. It was argued that the escort had to collect the clients physically from the door of their homes, and that points to a recognition that such a procedure was required if the duty of care was to be carried out.

She citied the following passage from the Specification of Service;

 “the escort is required to assist clients who have learning disabilities from their homes to and onto the vehicle”

Lord Justice Keene agreed that the judge was correct in rejecting this submission. The phrase “from their homes” is, taken in isolation, ambiguous. It could be used in a more general sense. Paragraph 9 of the Code of Conduct states;

“some passengers are able to make their own way to and from the transport”

He stated that when these contractual documents are read as a whole, it is clear that the judge was right to construe them as allowing a degree of flexibility to the Second Defendant and the escort, so as to accommodate the varying abilities of the client and the aim of teaching them to become independent. He did not accept this submission.

Keene LJ accepted that there was some evidence suggesting that the Claimant was not competent to cross the road. But there was ample evidence on which the judge could properly reach the finding about Paul’s competence which appears at paragraph 99 of the judgement. He was bound to conclude that the finding of fact was one which was open to him on the evidence. If that was the case, then the fact that sometimes the Claimant got up latye and was in fact collected from his own house or driveway is nothing to the point. There was no evidence that the Claimant was in some way confused by such flexibility in the arrangements. It did not amount to a defect in the system.

He came to the conclusion that the judge’s finding that the system in operation was a reasonably safe one, given Paul’s competence, was soundly based. On the evidence, it was not reasonably foreseeable that he would disobey such an instruction, nor was it foreseeably unsafe to allow him to cross Boundary Road under the supervision of the escort. He could see no fallacy in the judge’s reasoning, nor in his conclusion that the system being operated did not indicate negligence on somebody’s part. Negligence was not established so he dismissed the appeal.    

Both Lord Justice Jonathan Parker and Lord Justice Brooke agreed with Lord Justice Keene that the appeal should be dismissed. Lord Justice Brooke added further to the judgement

He first drew reference to Miss Gumbel’s first point, namely that the Claimant’s competency to cross the road was not contended in the parties’ statement of case. Whilst agreeing with Keene LJ that the statements of case ought to have been amended to accommodate this he did contemplate that evidence and lines of inquiry may come out in trial. He also agreed that since no attention was apparently paid to this issue during the trial, and since there was no appeal against any procedural ruling the judge made when new lines of inquiry opened up, it was now up to Miss Gumbel to take for the first time in this court points about the limits of the original coverage of the parties’ statements of case which could an should have been taken at the trial if they were good ones.  He was heavily influenced by the decision in Re- Source American International Ltd v Platt Site Services [2004] EWCA Civ 665 at [62];

“…[t]he unexpected often happens in the course of a complicated trial. If it does, it is the judge’s duty to reappraise the situation, if any of the parties request it, and to permit a party to amend its statement of case if satisfied that this can be done without the injustice to a party affected by the amendment. If necessary and appropriate, an adjournment may have to be granted to permit further evidence to be adduced to meet the new case.”

He came to the same conclusion namely that on the totality of the evidence it was impossible to find against Justice Morland judgement. There was ample evidence to show that the Claimant had reached a level of independence and road safety competence so that he was able to cross Boundary Road, even in rush hour, without being exposed unreasonably to the risk of foreseeable injury.

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