The Court of Appeal recently handed down judgment in Dawkins v Carnival Plc (2011) EWCA Civ 1237. Despite the rather exotic backdrop (on board the cruise ship ‘Oriana’ travelling in international waters), the claim is a classic restatement of the operation of the evidential burden in slipping claims.
Mrs Dawkins slipped on some liquid in the ship’s restaurant. Fellow passengers gave evidence that the when they had arrived at the restaurant 10-30 minutes earlier there had been no spillage on the floor. The restaurant was particularly busy at the time and was fully staffed with some 15 to 24 crew members.
The Defendant adduced evidence of their general inspection system. Critically, however, not a single member of staff who was actually working on the day of the accident was able to give evidence at trial, a fact that the Court of Appeal described as ‘remarkable’. There was, therefore, no direct evidence of the actual implementation of the system in practice.
At first instance the trial judge found that the evidence of the general cleaning system employed by the Defendant was sufficient to allow him to draw an inference that it had in fact been operating at the material time, and accordingly that the liquid could not have been in place for very long.
The Court of Appeal held that the judge had reached the wrong conclusion. It was common ground (despite a flawed pleading under the Occupiers Liability Act 1957) that the claim was governed by the Athens Convention 1974. However, the Court of Appeal, referring expressly to Ward v Tesco Stores (1976) 1 WLR 810, held that the correct approach was as follows:
(a) At the end of the trial it is for the claimant to show on a balance of probabilities that the accident was caused by negligence of the Defendant.
(b) Where premises, such as the floor of the restaurant, are under the management of defendants and a hazard is present on the floor, there may be a prima facie case of negligence against the defendant. The strength of the case will depend on all the circumstances.
(c) In the present case, there was a prima facie case, as the judge found.
(d) The issue is whether, on the evidence as a whole, that case was displaced by the Defendant.
The Court of Appeal rejected the Defendant’s submission that by calling evidence of a usually good system of inspection and observation, they had displaced the case against them. The absence of any direct evidence from the cleaning staff prevented any proper inference from being drawn, particularly in light of the busy nature of the restaurant and the need for ‘close observation’ at all times. Accordingly, the claim succeeded on the basis of the prima facie case.
It seems to me that two important points , one of principle, the other of practice, arise from this case.
The first is the fact that Court of Appeal had no hesitation at all in applying English common law principles to the claim, even though the exclusive cause of action arose under the Athens Convention, a free-standing liability regime. This is particularly significant when one bears in mind that Article 3 of the Convention expressly places the “burden of proving fault or neglect” on the Claimant.
Secondly, the case serves as a salutary reminder to Defendants in all slipping claims that, where a prima facie case has been established pursuant to Ward v Tesco, it is not enough merely to adduce generic evidence of the cleaning system which should or normally would be operated. The Defendant bears an evidential burden, and therefore must adduce specific evidence that it in fact exercised reasonable skill and care at the material time.