No B3/2000/3676
Neutral Citation Number: [2001] EWCA Civ 685
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF 
HIS HONOUR JUDGE SIMMONS
(Milton Keynes County Court)
								Royal Courts of Justice
								Strand
								London WC2

								Wednesday, 4th April 2001
B e f o r e:

LORD JUSTICE THORPE

LORD JUSTICE TUCKEY

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PATRICK JOHN CROSS

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UGC LTD
t/a OXFORD AUTOMOTIVE

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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MR C BROWN (Instructed by Henmans of Oxford) appeared on behalf of the Appellant

MR H REES (Instructed by Franklins of Milton Keynes, Buckinghamshire) appeared on behalf of the Respondent

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J U D G M E N T
1.	LORD JUSTICE THORPE: This is a defendant's appeal against a judgment for the claimant given by His Honour Judge Simmons in Luton County Court on 27th November 2000.
2.	The claimant, Mr Patrick John Cross, was in 1994 a trusted and experienced employee of Oxford Automotive Components Ltd working in their paint shop in the Woodstock Road, Oxford. The accident which formed the subject of the subsequent litigation happened on 29th October 1994 during the course of what was a regular routine to clean down the paint spraying booth at the premises. The booth had to be cleaned of accumulated paint deposits with a solution of water and cleaning agent. Inevitably, in the course of the operation the floor and surroundings became wet and slippery as a consequence of paint shavings and the combination of surplus water and cleaning fluid that fell to the floor. There was for his use a step ladder. The step ladder provided a useful peg for the spray gun which Mr Cross hung at the top of the step ladder and in order to retrieve the spray gun he climbed two or three steps of the ladder, unhooked the gun and on his descent missed his footing, the foot sliding forward and he falling backwards with considerable force and suffering a relatively serious injury.
3.	The claim was presented and subsequently expanded through further and better particulars. It is unnecessary to record shifts in the plaintiff's case during the pleading stage. But the trial conducted by Judge Simmons in November was restricted to the sole issue of liability. Each side relied on the evidence of experts. The experts had met in advance and there was really not that much between them. It was common ground that the defendants were responsible employers who had always maintained high standards for their employees. The case as pleaded made some general assertion that the defendants had failed to maintain a safe system of work in a very general pleading of negligence. It was said they caused, permitted or required the plaintiff to work in an environment that was inherently unsafe. The expert for the plaintiff really presented his assessment on the grounds that the slippery nature of the floor was the immediate cause of the accident and was the basis of the defendants' liability. He made some perhaps lesser play of a suggestion that there should have been fuller training for the claimant in the use of a ladder, particularly there should have been a more regular instruction to ensure that in using a ladder in such an environment he should make absolutely sure that his foot was securely on the rung. The claimant in his evidence did not really embrace that line of attack. In the end the case stood or fell on the assertion that the defendants had done too little to safeguard the claimant against what was a particularly risky work place.
4.	The judge delivered an ex tempore judgment at the end of what had been a long day. He was at pains to point out in the opening paragraphs of his judgment that he was not going to go into great detail in view of the lateness of the hour. Having explained his reasons for holding the defendants liable for the accident and rejecting their alternative defence of contributory negligence, he said:
“I should not leave my judgment without saying I have given a much more truncated summary of the effects of the evidence than I would otherwise have done but the hour is rather late. I am afraid I can't sit very late tonight, if I hadn't given my judgment this afternoon there would have been a long delay before this case could get back into a list ..... “
5.	The application for permission was granted by Lord Justice Dyson at the end of January. He said:
“It is arguable that the judge was wrong to find the appellant at fault: see [the appellant's] skeleton ..... and the evidence of [the claimant's expert] ..... The claimant knew that there was a general problem of slippery debris: ..... He did not need to use the step ladder on this occasion ..... It is therefore arguable that there was some contributory negligence.”
6.	Mr Brown, who has argued this appeal very skillfully and very succinctly, has really adopted and elaborated that analysis. He essentially says that the judge's rationalisation of a finding against the defendants simply will not found on the evidence. The judge explained his finding at page 8 of his judgment when he said:
“It does seem to me that there is some substance in [the claimant's expert's] comment that the system adopted, or not really adopted as a system at all in the case by the defendants, was somewhat haphazard in relation to keeping the floor in a safe condition ..... In my judgment the overwhelming probability is, having regard to what I have heard about the conditions and the hazards that there are, that his foot slipped because of what was on the soles of his feet and the way that there was, in my judgment, inadequate measures in place to prevent the floor and eventually his feet from being slippery.”
7.	Mr Brown draws our attention to the transcript of the evidence of the claimant's expert. During the course of his cross‑examination he was dealing with the defendants' system for safeguarding the work force against the risks inherent in the slippery state of the floor, namely to spread sawdust. He was asked the question on his report. The paragraph of the report that was under review read:
“Slipperiness of all the surfaces which had to be cleaned down was an ever present hazard of the task; sawdust was put down from time to time to reduce it. Nobody else mentions it and it does not appear to have been a regular and systematic procedure.”
8.	Upon that paragraph he was asked the question by the defendants' counsel:
“Q. ..... Now, no matter what precautions you take this is going to be - - the work going on in these booths, whether it's the spraying or the cleaning of them, is going to be hazardous?
A. Yes.
Q. I mean it's an inherent part of the operation of these booths, and that's a feature through the industry?
A. Yes. What hazard, which particular hazard are you talking about? There's a very grave health hazard but we're not talking about that, are we?
Q. No. No, I'm really talking about moisture, the presence of moisture.
A. Muck.”
9.	Then, that being confirmed, comes this question:
“And you don't criticise, I think, the method of putting sawdust down in order to ..... “
10.	The judge intervened by saying:
“He said, `I can see nothing wrong with the use of sawdust at all.'“
11.	The judge said:
“He thinks that it ought not to be as haphazard as it was.”
12.	Counsel continues:
“But you were not able to say in regard to the sawdust, or you don't say in regard to the sawdust that there was too much or too little?
A. I have no idea, I couldn't possibly know.”
13.	Mr Brown places great reliance on that one answer.
14.	The judge's summary of the expert's position, namely the use of sawdust should not have been as haphazard as it was, is taken up five pages later when, during the course of further questioning he is asked:
“But other than in the broadest of generalities you are unable, as it were, to pinpoint any specific deficiency?
A. Well, I'm unable to say how slippery slippery is. I'm not able to, it's a matter that would have to be observed by the ..... “
	and at that point the judge interrupted and said:
“But in general terms what do you say that they could have done?
A. They could have put the sawdust down in measured amounts. The impression I have is that they just flung down a shovelful whenever somebody felt like it.”
15.	For me, the essential question raised by this appeal is whether there was within the evidence sufficient to justify the judge's conclusion in the passage at page 8 of his judgment which I have just read. Bearing in mind that this was twice stated to be an abbreviated ex tempore judgment, I have reached the conclusion that there was just sufficient in the evidence to allow the judge to find that the system in place was somewhat haphazard in relation to keeping the floor in a safe condition.
16.	I would therefore reject Mr Brown's primary submission that it was not open to the judge to find for the claimant on the basic issue of liability.
17.	I turn to his second submission which was that the judge was wrong to have exonerated the claimant from any contributory negligence. The judge dealt with it in this way. He said:
“I then turn to the question of contributory negligence because he acknowledged and, as I said, I was struck by his honesty, that he could have moved the ladder away. It is a lightweight ladder with a lightweight piece of equipment on it. `I chose to do the operation in that way,' he said. [Counsel] submits that the claimant is guilty of contributory negligence to a very high degree for a variety of reasons, but not least because he did not take the opportunity of moving the ladder, which was open to him, but I do accept again the submission of [counsel] on this point, that simply because a workman chooses to do what appears on the face of it to be a perfectly reasonable method of retrieving a piece of equipment rather than moving the ladder, particularly in light of the admitted evidence that there was no reinforcement of the guidance note at paragraph 6 that I have already referred to, does not mean that the workman himself need be penalised in the circumstance, and in my judgment that is right and the defendants therefore fail on that argument.”
18.	The guidance to which the judge referred in rejecting the submission that the claimant was at fault in having selected the method of climbing rather than the method of moving the ladder is the guidance note SG31 from the Health and Safety Executive. The paragraph in question, paragraph 6, reads:
“The first question to ask is can the job be done more safely in a different way? A ladder is a simple, versatile, relatively-inexpensive piece of equipment, the temptation, therefore, is to us it for all sorts of work without considering whether the risk warrants an alternative method.”
19.	That does seem to be a reference which is apt in view of the balance the judge had to strike in weighing the defendants' submission.
20.	I cannot for my part see that the judge is necessarily wrong to have arrived at the conclusion that this choice that the claimant made did not expose him to a finding of contributory negligence.
21.	Mr Brown complains that the judge has only dealt with one of the variety of submissions advanced by the defendants' counsel. He refers to two others. The first is that the claimant was under some obligation to make sure that the soles of his boots were free from accumulated debris before using the step ladder. The second was that the claimant was under a particular obligation to ensure that he had a secure foothold in placing either foot on any of the rungs of the step ladder. The second of those submissions seems to me somewhat fanciful but there is undoubtedly force in the first, namely that there must have been some expectation that an experienced workman such as the claimant would at the very least have cleaned off the sole of his boot, perhaps on the lowest rung or by some other means, before climbing and descending.
22.	However, it seems to me that we must always bear in mind that this was an abbreviated ex tempore judgment. It seems to me plain enough that the judge concentrated on the assertion that the plaintiff made the wrong choice because that was the defendants' primary reliance. Had the judge dealt explicitly with all the variety of reasons advanced by the defendants' counsel then it is evident that he would have rejected each in turn.
23.	The temptation to make some division of liability in this case is obvious since it was plainly a thin case on liability and with the advantage of hindsight it can easily be said that the claimant was lucky to have succeeded. The temptation to tinker should, in my view, be rejected. It was for the judge to make an assessment. He was particularly impressed by the plaintiff's honesty. I have reached the conclusion that on this issue, as on the first, no sufficiently compelling ground has been demonstrated to require this court to interfere. So although acknowledging the validity of the appeal and the attraction of Mr Brown's presentation, in the end I would, for my part, dismiss the appeal.
24.	LORD JUSTICE TUCKEY: I agree.
Order: Appeal dismissed with costs.