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This Report is referred to in: Graham v Chorley District Council [28].

Neutral Citation Number: [2001] EWCA Civ 1529
B3/2000/3424
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Roger Cooke)

Royal Courts of Justice
Strand
London WC2
Tuesday 9th October, 2001

 

LORD JUSTICE ALDOUS
LORD JUSTICE CHADWICK
SIR MURRAY STUART-SMITH

 

MARK ROBERT LLOYD
Claimant/Appellant
v
JOHN LEWIS PARTNERSHIP
Defendant/Respondent

 

(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4 A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)
MR R BARRETT (Instructed by Messrs Somers & Blake, London W7 3SH) appeared on behalf of the Appellant
MR E BISHOP (Instructed by Messrs Vizard Oldham, London WC1 R 4JL) appeared on behalf of the Respondent

HTML VERSION OF JUDGMENT
Crown Copyright ©
1.   LORD JUSTICE ALDOUS: I invite Sir Murray Stuart-Smith to give the first judgment.
2.   SIR MURRAY STUART-SMITH: This is an appeal from a judgment of His Honour Judge Cooke given at the Central London County Court on 11th October 2000 in which he dismissed the claimant's claim for damages for personal injuries against his employers, the John Lewis Partnership Plc. I can take the facts of the accident very largely from the judge's judgment.
3.   The claimant at the material time was employed by John Lewis, the well-known retailing group, to lead a delivery team from their depot at Park Royal. They were the people who were in effect made special deliveries of the heavier and more difficult items. What the claimant was charged to do with a team of two plus himself was to deliver a king-sized bed to an address in North Kensington and deliver it through an upstairs window. His case is that the team of a four was on all occasions required. The scheme of it would be this, that the goods which in effect was the bed divided into two pieces, the bed base, would be delivered by this means. A ladder would be put up below the relevant window. Two members of the team would go upstairs and they would be hauling on ties which would be secured to the lower part of the item, but controlled by a tie wrapped round the upper part. A man would on the team of four basis then walk up the ladder behind the item, guiding it up while the fourth man would foot the ladder to hold it steady.
4.   The claimant found it necessary to go up the ladder, in circumstances which I will describe, which meant that the ladder was not footed because there was no one at the bottom of it. The claimant's case is that there should have been a fourth man at the bottom of the ladder, or alternatively something called elephant's feet which are substantial objects into which the base of the ladder fits to stop it slipping. The case is that there was no man in that situation to go up the ladder to guide it; and alternatively when it did become snagged on its way up the ladder, which it did, the fourth man - or the third man with somebody footing the ladder - would have been in a position to free it.
5.   What in fact happened was that the bed, for some reason or other which was not known, snagged so that it would neither go up nor down. So the claimant climbed up the ladder. He described how he put one shoulder underneath the bed and used his muscle power to push it up. Somehow or other the bottom of the bed moved upwards away from the ladder and was being pulled up by the men at the top with their ties. He, in order to try and free it, got his head and shoulders underneath the bed in a position that the judge described as something like a mousetrap. When the bed became free, or at any rate it dropped on to him and hit him on the head and shoulders. In effect that was the accident.
6.   The judge acceded to a submission on behalf of the defendant that there was no case to answer after the completion of the claimant's case. In particular he said that on the claimant's case taken at its highest the claimant had failed to prove on balance of probability that the failure to provide a fourth man or elephant's feet caused the accident. He said that there was only one way in which the case had been put: namely, that the absence of a fourth man or the elephant's feet was the negligence relied upon and that was the cause of the accident. It was not a case where the whole system of work was criticised or some other means of delivery should have been adopted.
7.   Before coming to the main points of the appeal, there are one or two preliminary points which I should deal with. There was much discussion before the learned judge as to whether, under the provisions of the Civil Procedure Rules, the judge was required as a condition of listening to a submission of no case to answer to put the defendants' counsel to his election whether or not to call evidence. Under the old rules that had been the position - if counsel wished to submit that on the claimant's case there was no case to answer the judge, as a rule, put the defendant's counsel to his election; and if he refused to elect to call no evidence the judge would not entertain the submission. That was as a result of the opinions expressed in the Court of Appeal in Alexander v Rayson [1936] 1 KB 169.
8.   The judge heard argument about this. He was cited a case called Mullan v Birmingham City Council decided by Mr David Foskett QC earlier in the year 2000. He concluded that under the Civil Procedure Rules that rule in Alexander v Rayson had been altered and that as a general rule a judge was not required to put defence counsel to his election, although there might be exceptional circumstances in which he would do so.
9.   Since the judge determined the point there has been a decision of this court on the point. It is called Boyce v Wyatt Engineering. In . There were good reasons for that rule and it should be, as a general rule, adopted unless there are circumstances which indicate the contrary.
10.   It is unnecessary to refer to what Mance LJ said in any more detail, it can be read by those who wish to do so. I have no doubt that if the judge had had the benefit of that authority, rather than the authority to which he was referred, he would have come to the conclusion that he should put the defendants' counsel to his election. What he would have elected to do we do not know. But it seems to me that there is really nothing in this point bearing on the appeal because the judge made his decision. If he was right on the question of causation, then the appeal fails: if he was wrong on that point, then the appeal succeeds and there will have to be a new trial or continuation of this trial by Judge Cooke.
11.   The second problem which arose related to the expert evidence in the case. For reasons which do not now matter, neither party seemed to me to have dealt with the question of expert evidence very sensibly or in accordance with the rules. The defendants decided at a late stage that they wanted to call expert evidence. They had permission to do so. The claimant then thought it was good idea for him to put in expert evidence. The defendants at first agreed with that, but then decided to oppose it; and it was not until the trial of the action that the claimant made his application to the judge to adduce the evidence of Mr Courtney, a surveyor, in support of his case.
12.   It is quite clear from the judge's ruling that had he come to the conclusion that Mr Courtney's evidence was of assistance to the issues which he had to resolve he would have admitted it. But he rejected it on the basis that it did not help him to resolve the issues which he had to resolve. In the words of the Civil Procedure Rules Part 35 that:
  
   "... it was not reasonably required to resolve the proceedings."
13.   Mr Barrett has raised a number of points of objection and criticism of the way the learned judge dealt with the matter, but in my judgment they are nothing to the point. The real question was whether Mr Courtney's evidence had anything to advance the case of how the accident happened, precisely why the bed snagged, and whether or not the presence of a fourth man would have prevented the claimant being in the position in which he was when the accident occurred.
14.   I agree with the judge that there is nothing in Mr Courtney's evidence that bears on any of those issues. For those reasons, I consider that the learned judge was right to exclude it. The fact that Mr Frey's evidence, the expert for the defendants, had been admitted de bene esse is nothing to the point. It may be that his expert evidence did not bear on the question either, and it could then have been objected to on the basis that there was nothing relevant in it. In fact of course since the defendants' case was never heard Mr Frey's evidence was not in issue and never before the court, although his report had been tendered in the usual way.
15.   The real issue in this case is whether or not the judge was right to conclude on the submission of no case that there was no case to answer. He found first of all that there were three possible ways in which the bed had snagged. That is at page 182. He said:
  
   "There are at least three different versions as to how the snag might have happened and I emphasise the word "might". One is that the ties or the string on the parcel somehow got caught on the guide brackets of the ladder. Another is that because the underside of the bed is not all of it rigid that the packaging created some sort of pocket that caught on either the brackets or possibly the top of the ladder itself. Another is that the bag of tools (which goes with beds of this kind which have to be assembled and their feet put on so that there is a plastic bag stuck somewhere on to the package itself) fouled either the ladder or the windowsill. All were possibilities. Nobody knows which they were and of course nobody therefore knows what the answer to the problem would have been."
16.   The claimant before the judge put his case in two ways, as he has done in this court. The first argument is this: had there been a fourth man to foot the ladder or the elephant's feet to keep it steady, the claimant (assuming it was him) could have gone up the ladder and guided the bed so that it did not snag.
17.   The judge dealt with this submission. He referred to the cross-examination of the claimant. I should say we do not have any transcript of the evidence, so this comes from the judge's quotation of it from his own note. It is cross-examination by Mr Bishop:
  
   "Q. The ladderman's job is guidance, making sure it does not go from side to side?
     A. Yes, not carrying the weight.
     Q. It could just have easily have happened with him?
     A. It is a possibility.
     Q. Unless we know it would be difficult to say whether the fourth man would have prevented it from happening?
     A. He would then be [more] able to manoeuvre than I would, feel safer to release it.
     Q. What would a person on the ladder after snagging be able to do?
     A. Would be a bit more forceful than I would, ladder could go into a bounce.'
     In other words, an footed ladder bounding obviously would be dangerous; a footed ladder you could survive."
18.   I agree with the learned judge when he came to the conclusion that the guiding of the bed up the ladder was not the problem. It seems to me that there is no evidence that simply pushing the bed up straight on the ladder, still moving up resting on the styles of the ladder, would have in any way overcome this problem.
19.   The real gist of Mr Barrett's case is in relation to the second way in which the claimant's case is put. If the ladder had been footed, then the claimant would have been able to go up the ladder, grasp the bed by its bottom or its sides, shake it about in a vigorous manner, and that would probably have freed the snag and the claimant would not have been in a position of danger, with his head and shoulders underneath the uplifted bed, in what the judge described as the mousetrap.
20.   That is the case which the claimant made, if I put it that way, in paragraph 33 at page 65 of his witness statement, which I imagine was his evidence-in-chief. He said:
  
   "I felt that my only choice was to go up the ladder from underneath, which I had to do very cautiously because there was nobody steadying the ladder. Again, even if had elected to do it that way, if there had been somebody steadying the ladder at the bottom I would have tried to pull the thing outwards from the ladder in order to free it. That would have meant taking both hands off the ladder, catching hold of the bottom of the bed and then possibly jerking back a bit. I dare not do that with nobody footing the ladder because it might have dislodged the ladder and sent us all crashing to the ground.
 34.   The only thing I could think of to do was to climb the ladder, get my shoulders underneath the item and then to push upwards very gently. In that way I hoped to free it without in any way de-stabilising the ladder."
21.   Then he describes how he got up and was pushing it up. Did not free it. He got his head and shoulder underneath the bed as it was lifted up, and it fell on him in that way.
22.   Mr Barrett submits that that evidence was enough at that stage of the case to indicate that on the balance of probability if the claimant had been able to do that the bed he would have freed the snag.
23.   The learned judge, it seems to me, did not really ask himself the critical question here which is: would the presence of a fourth man have prevented the claimant from getting into the position of danger in which he was? He could I think have concluded as a matter of fact that if the claimant had shaken the ladder as he described it would have made no difference. If he had done so it is possible that the claim would have failed. However he does not, it seems to me, really address that problem.
24.   He dealt with it on page 190, and it is right that I should read the whole of that section:
  
   "Mr Bishop then goes on and says this. `If the court is able to make such a finding', [that was a criticism of the claimant's evidence] and I assume for present purposes that the court may, `then there is no evidence at all that given a ladder stabilised from below the ladder man would have approached the problem in a different way and thus avoided the accident.' As to that I refer back to the quotation from cross-examination I have already given. That I think is the high point of saying that there would be a different approach. It would be easier to manoeuvre because the ladder is being footed. One is able to be more forceful for the same reasons. It founded at least a possibility.
    But then one comes to Mr Bishop's third approach - still no evidence that the ladder man's different approach would have produced a different result. To my mind that kills the possibility to which I have just referred because, although one might just be able to say that the ladder man would to that extent have adopted a different approach it does not follow on any evidence that I have that it would have achieved in the event a different result. There is simply no factual basis for the way in which the Claimant puts it. The cross-examination answers really show that that is so. There is nothing anywhere fundamentally because we do not know what caused the snag."
25.   With all respect to the judge, I am not persuaded that the answers in cross-examination go as far as to say that if the claimant had been able to adopt the system which he says he would have adopted had there been a fourth man, it would not have achieved the result of freeing the snag.
26.   It seems to me that the claimant's evidence does at least, as the judge recognised, raise that possibility. But the judge has made no positive finding one way or the other on that question. The problem in this case is that it is not possible to say that the judge would inevitably have come to the conclusion, if he had addressed that question, that the presence of a fourth man would have made no difference at all.
27.   I should say that we have had extensive argument from Mr Barrett based on the case of McGhee v National Coal Board [1973] 1 WLR 1. Mr Barrett's submission is that the judge approached the matter in the wrong way. He should have asked himself whether the defendant's negligence - and it was accepted, I should say, for the purpose of this case and the submission of no case, that there was arguably negligence on the part of the defendants in not providing a fourth man or elephant's feet.
28.   Mr Barrett has submitted that the question is whether or not that negligence made a material contribution to the accident, not simply a question of causation, and that if it materially increased the risk, on the basis of the speeches in the McGhee case, that would have been sufficient.
29.   I do not find that the submissions based on McGhee of any assistance in this case. The question of "caused" or "materially contributed to" is relevant where there are two or more causes of an injury or disease. In the case of Bonnington Castings Ltd v Wardlaw [1956] AC 613, which was the first case of this type, the question was whether or not dust which came from two sources, one of which the employers were not to blame for and one of which they were, whether the guilty dust (so to speak) materially contributed to the disease of pneumoconiosis from which the pursuer suffered.
30.   In McGhee the situation was slightly different, but basically the same. There the claimant's dermatitis was caused by exposure to brick dust. The defendants were not responsible for the brick dust in the brick kilns on site, but they failed to provide washing facilities, so that the claimant had to ride home in a hot and sweaty condition and was exposed to the brick dust for considerably longer than he otherwise would have been if the washing facilities had been provided as they should have been. The House of Lords, following Bonnington Castings, said that the additional period during which the claimant was subjected to the presence of the brick dust materially contributed to the disease of dermatitis. There had been a finding that it materially increased the risk and it was said that is in effect the same thing as materially contributing towards it.
31.   The expression "material contribution" also arises where there are two or more tortfeasors. If one tortfeasor's activities are only of minimal significance, it is not a material contribution to the injury or disease. Likewise in cases of contributory negligence, if the claimant's own contributory negligence is minimal it does not materially contribute to the accident or disease and is to be disregarded. In that sense material contribution is a relevant factor. To my mind, that is of no assistance in this case. The question is: did the absence of a fourth man mean that the claimant had to be or was in a position of danger from going up the ladder and getting himself in a position where if the snag freed the bed would come down on his head.
32.   To my mind, the learned judge, for the reasons I have given, does not appear to me to have come to a clear conclusion about that one way or the other. If he had concluded that it would have made absolutely no difference, then I think it would have been difficult to maintain this appeal. But it seems to me that the answer to that question is not inevitable on the evidence as we have it, particularly having regard to what the claimant said in the passage to which I have referred, which seems to have been his evidence.
33.   For those reasons I have come to the conclusion that this judgment should be set aside and that a retrial should be ordered.
34.   LORD JUSTICE CHADWICK: I agree. This unfortunate accident occurred because the claimant had put himself in such a position on the ladder that, if the lower or trailing edge of the bed - which had been raised so that it was no longer in contact with the ladder - moved abruptly downwards, it would strike him in the area of his neck or shoulders. The question for the judge, as it seems to me, was whether the claimant could establish on the balance of probabilities that he would not have put himself in that position on the ladder if the foot of the ladder had been secured, either by the presence of a fourth or "footer" man; or by the use of what are described as elephant's feet.
35.   It is not I think necessary to determine why the trailing edge of the bed did move abruptly downwards as it did, thereby trapping the claimant's neck and shoulders in what has been described as a mousetrap formed between the bed and the ladder. There are at least two reasons why it may have done so: either the pull exerted from above on the ties used to raised the bed was suddenly relaxed; or (as I, myself, would think more likely) the upper or leading edge of the bed was freed from whatever obstruction had been preventing its progress upwards, with the result that the bed was able to revert to its natural alignment parallel to the ladder.
36.   Whatever the cause of the trailing edge moving abruptly downwards, it cannot I think be suggested that that descent was caused by the absence of a fourth man or the use of elephant's feet to secure the foot of the ladder. As I have said, the relevant question is not why did the bed descend as it did; but "would the claimant have been in the position in which the descent of the bed caused him injury if the foot of the ladder had been secured?
37.   As Sir Murray Stuart-Smith has explained, the judge did not address that question in his judgment. It is impossible to have confidence that, if the judge had addressed that question, he would have reached the conclusion that the claimant had failed to establish, on the balance of probabilities, that he would not have been in the position in which he was when the accident occurred. This is not a case in which it can be said that the evidence points necessarily to that conclusion.
38.   In those circumstances, I, too, am persuaded that the appeal must be allowed and the matter remitted for a new or further trial at which the relevant question can be addressed.
39.   LORD JUSTICE ALDOUS: I agree with both judgments.
  ORDER: Appeal allowed; order made on 11th October 2000 set aside; case to be sent back for the trial to continue before His Honour Judge Cooke; costs below reserved; costs of appeal to be paid by the respondent, such costs not to be paid until after the finalisation of these proceedings; detailed assessment; appeal against the order of 9th October dismissed, with no order as to costs.
  (Order not part of approved judgment)