Slater v Buckingham County Council & Anor

In negligence claims involving vulnerable persons, the safety of a collection or transport system must be assessed against the individual’s established capabilities, the surrounding conditions and the supervision actually provided. A trial judge’s finding that the person could cross a road safely should not be disturbed unless it was not reasonably open on the evidence. Contractual duties are construed from the documents as a whole; assistance from a person’s home does not necessarily require collection at the door where arrangements accommodate different abilities and promote independence. A system remains reasonably safe where disobedience of a clear instruction by a person ordinarily compliant was not reasonably foreseeable. Evidence developed at trial may enlarge the issues where parties participate without objection, but procedural objections should be taken at trial.

Paul Slater, a man with Down’s Syndrome, suffered catastrophic injuries after being struck by a car while crossing a road to reach a minibus taking him to a day centre. He claimed negligence against Buckinghamshire County Council and the minibus contractor, alleging that the collection arrangements exposed him to a foreseeable risk of injury.

After a five-day trial, Morland J found that the established pick-up point was on the opposite side of the road, that the contractual documents allowed flexibility, and that Mr Slater was sufficiently competent to cross the road safely. The claim was dismissed in [2004] EWHC 77 [QB]. The appeal challenged the treatment of the pleadings, the construction of the contractual arrangements, and the judge’s assessment of the evidence and safety of the system.

The appeal was dismissed unanimously. Keene LJ gave the principal reasoning. Jonathan Parker LJ and Brooke LJ agreed. The court held as follows:

1. Pleadings and the trial issues. Although statements of case should identify the issues for trial, the evidence may develop beyond their original scope. Where a party participates in the relevant evidence and cross-examination without objection, amendment application or request for an adjournment, it is not generally open to that party to raise the original limits of the pleadings for the first time on appeal. Brooke LJ referred to the procedural principles stated in Re-Source American International Ltd v Platt Site Services [2004] EWCA Civ 665 at [62].
2. Construction of the contractual documents. The reference to assisting clients from their homes was ambiguous when isolated. Read with the provision recognising that some passengers could make their own way to and from transport, the Specification of Service and Code of Conduct permitted flexibility. That construction accommodated varying abilities and the aim of developing independence. The contract did not require physical collection from the door in every case.
3. Appellate review of fact. The finding that Mr Slater had reached a level of road-safety competence sufficient to cross Boundary Road during the morning rush hour was a finding of fact reached after a lengthy trial and conflicting evidence. The Court of Appeal should not overturn such a finding merely by reviewing transcripts. It should do so only where the finding was not open to the judge on the evidence.
4. Negligence. There was ample evidence supporting the judge’s finding that Mr Slater had crossed safely on many previous occasions, including where a regularly parked vehicle restricted visibility. The occasional collection from his house or driveway did not establish a defect in the system, and there was no evidence that he was confused by the flexibility. On the accident morning he was under the supervision of the escort, who instructed him to wait. Since he ordinarily obeyed her instructions, it was not reasonably foreseeable that he would disobey, and it was not foreseeably unsafe to permit him to cross under that supervision.
5. Negligence was therefore not established against either respondent. It was unnecessary to determine which respondent bore legal responsibility for establishing the collection arrangements.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld Morland J’s conclusion that neither respondent was negligent.
• High Court of Justice, Queen’s Bench Division: The claim was dismissed in [2004] EWHC 77 [QB].