Buyukardicli v Hammerson UK Properties Plc & Ors

A claimant’s contributory negligence cannot amount to 100 per cent where the defendant bears primary fault. The court must allocate blame between the parties rather than treat contributory negligence as negating the defendant’s breach.

Whether a small change in level is a hazardous defect depends on its location, context and the reasonable use which visitors may make of the area. An appellate court should exercise caution before reversing a trial judge’s evaluation of primary facts, including findings about how an accident occurred.

The claimant fell outside the John Lewis store at Brent Cross and alleged that she had tripped over a raised kerbstone bordering an unfinished, compacted-earth flowerbed. The first and second defendants admitted that they were joint occupiers. The third defendant, a contractor, was dismissed by consent.

The Central London County Court found the occupiers liable, assessed general damages at £28,000 subject to further quantification of loss of earnings, and reduced the award by 75 per cent for contributory negligence. The first defendant appealed on the issues of whether the claimant had tripped, whether the approximately two-inch lip was a legally actionable hazard, whether she was wholly responsible for the accident, and the third defendant’s costs.

1. Appeal dismissed. The court upheld the trial judge’s findings that the claimant tripped over an approximately two-inch lip, that the lip was causative, and that the occupiers had breached their duty to take reasonable care for lawful visitors.
2. Per Lord Justice Sedley, the submission that the claimant was 100 per cent contributorily negligent could not succeed in light of Anderson v Newham College of Further Education [2002] EWCA Civ 505. Where the defendant bears primary fault, contributory negligence permits an allocation of blame under the statute; it does not eliminate the defendant’s liability.
3. The size of a defect cannot be assessed in isolation. The raised lip was situated on the inner edge of an unfinished feature placed before a busy shop entrance, where visitors were known to walk. The judge was entitled to regard it as a hazard for which the occupiers owed reasonable protection, notwithstanding that the claimant should have kept a careful lookout.
4. The judge was entitled to prefer the claimant’s account that she tripped over the lip despite inconsistent casualty notes. His findings were supported by the evidence and photographs, and the conclusions drawn from them were legally sound.
5. The appellate court applied the caution identified in Biogen Inc v Medeva Plc [1997] RPC 1. A trial judge’s evaluation of primary evidence contains nuances which may not be fully captured in the stated findings and should not readily be reversed on appeal.
6. The challenge to the costs awarded in favour of the third defendant failed. The trial judge was entitled to award those costs only from the date when the contractor’s lack of responsibility became apparent. Lord Justice Ward agreed with Lord Justice Sedley. The appeal was dismissed with costs, to be assessed if not agreed.

• Court of Appeal (Civil Division): dismissed the appeal from the judgment of His Honour Judge Green QC in the Central London County Court dated 1 November 2001, with costs to be assessed if not agreed.